New South Wales Supreme Court CITATION : Stanley v Advantage Personnel Pty Limited & Anor [2003] NSWSC 911 HEARING DATE(S) : 10-12 June, 19 September 2003 JUDGMENT DATE : 10 October 2003 JURISDICTION: Common Law JUDGMENT OF : Studdert J DECISION : I find the first defendant to have been negligent. I find the second defendant to have been negligent. I do not find the plaintiff to have been guilty of contributory negligence. I apportion twenty-five percent of the liability for the damage suffered by the plaintiff to the first defendant and seventy-five percent of the liability for the damage suffered to the second defendant. I assess total damages as against the first defendant in the sum of $916,234.95. I assess total damages as against the second defendant in the sum of $1,063.646.45. The matter is to be listed on Friday 17 October 2003 to afford to the parties the opportunity to agree upon short minutes as to the appropriate judgments and consequential orders, to be presented on that date. Factory, Shops and Industries Act, ss 34(a), 40(1) LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act, 1946 Workers Compensation Act, Pt 5 Div 3, s 151G Australian Iron & Steel Pty Limited v Luna (1969) 23 CLR 305 Australian Oil Refining Pty Limited v Bourne (1979-80) 28 ALR 529 Beck v The State of New South Wales [2001] NSWSC 278 Commonwealth of Australia v Tehuia (1984) 3 NSWLR 435 CASES CITED : Fenech v Australian Iron & Steel Pty Limited (unreported, NSWCA, 6 December 1968) Geaghan v D'aubert [2002] NSWCA 260 Johnston v Woolworths Limited (1982) 1 NSWLR 92 TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47 Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204 Anthony Anton Stanley (Plaintiff) PARTIES : Advantage Personnel Pty Limited (1st Defendant) Otis Elevator Company Pty Limited (2nd Defendant) FILE NUMBER(S) : SC 20296/02 D.T. Kennedy SC/J.W. Ingram (Plaintiff) COUNSEL : G.M. Swinton (1st Defendant) J.E. Sexton (2nd Defendant) Hilton King Solicitors (Plaintiff) SOLICITORS : Leitch Hasson Dent (1st Defendant) Moray & Agnew (2nd Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Friday 8 October 2003 20296/02 ANTHONY ANTON STANLEY v ADVANTAGE PERSONNEL PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: Anton Stanley claims damages from the first defendant, Advantage Personnel Pty Limited, and from the second defendant, Otis Elevator Company Pty Limited. The plaintiff alleges that he sustained injury at work at the premises of the second defendant on 24 February 1998. It is not in dispute that at that time the plaintiff was employed by the first defendant, but the first defendant provided the plaintiff's services to the second defendant to work with the second defendant as a spray painter. 2 The plaintiff alleges that he sustained injury as a result of the negligence of the first defendant and as a result of the negligence of the second defendant. Against the second defendant only, the plaintiff also alleges breaches of statutory duty under the Factory, Shops and Industries Act, 1962. Each defendant has denied negligence and has pleaded contributory negligence. The second defendant has brought a cross claim against the first defendant seeking contribution pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act, 1946. 3 The plaintiff described his work environment with the second defendant and the circumstances in which he was injured. No contrary account as to these matters has been presented, and I accept the evidence which the plaintiff gave both as to the work environment and the system of work and as to his account of the accident which I find occurred on 24 February 1998. I will now summarise the evidence which the plaintiff gave. 4 The plaintiff was born on 26 July 1965 and he left school at the age of thirteen or fourteen, so that he had some eighteen years experience in the work force, much of this being as a spray painter. His services were engaged by the first defendant in September 1997. That company in effect carried on the business of personnel hire and he was sent to work at the second defendant's premises at Minto. There he was engaged to do much heavy lifting and loading on the production line. He was also employed to carry out spray painting work inside a spray painting booth. The plaintiff said that the dimensions of that booth were some eight to ten metres in length by some three to four metres in width. There was a conveyor which ran down the centre of the booth to which items to be painted were attached. The conveyor in effect was an overhead beam with pulley attachments. The plaintiff said that the track was suspended from the ceiling and was roughly ten metres above the ground. The plaintiff said that there were four hoses providing compressed air and to which spray guns were attached. The plaintiff was provided with a face mask for the spray painting operations. 5 The plaintiff said that before an object was painted the surface would be prepared and thinners were used within the booth for this purpose. The floor surface in the booth was concrete and, according to the plaintiff, there was a build-up from paint droppings below the conveyor line. This build-up was twelve to eighteen inches in width and two to three inches thick. Although the plaintiff complained about it in November 1998, the floor had not been scraped after that time, although some potholes in the floor had been filled in. There was no grate or water system in the booth to catch the paint and paint thinner droppings which were deposited on the floor in the course of the operations in the booth. 6 When the necessity arose to work above ground level in the booth, use was made of a ladder. The plaintiff described the ladder as "an old timber electrical type with the rope strap in between". The plaintiff said it had four to five steps and the width of the stairs at the top was one foot. No other equipment was provided to work at height in the booth, but occasionally the plaintiff said empty twenty litre drums were used to stand on. 7 I turn to the plaintiff's account of his accident on 24 February 1998. The plaintiff said that the task at which he was engaged was the painting of the frame of an elevator floor. In practical terms, the object brought into the booth by crane was like a picture frame made out of RSJ angle iron, and its dimensions were 2.2 to 2.4 metres. When the object was brought to the booth it had to be scrubbed down and cleaned, and, for the spray painting which followed, the plaintiff said he used two guns. The first was an undercoat gun and the second was a finishing coat gun. The object was suspended from the overhead beam and it was necessary to use the ladder to paint the top section of the angle iron. The application of the undercoat proceeded without incident and the plaintiff then began to apply the finishing coat. He said that the spray gun for the finishing coat was attached to what the plaintiff described as "a very heavy industrial hose". To use the ladder, the plaintiff positioned it with the inside legs on the "hump" created by the paint droppings and the other two legs of the ladder were on what the plaintiff described as "the low side". As I understand this description, the plaintiff was indicating that those two legs were on the floor section to which the build-up of paint droppings did not extend. 8 The plaintiff said that he ascended the ladder to use the spray gun to apply the finishing coat. He described the gun as very heavy. The plaintiff was asked these questions and gave these answers: "Q. When you went up on the ladder, do you recall upon what rung you were on the ladder? A. I think it was the second most top step, the second most step. Q. Do you recall whether you had both of your feet on that rung, or one foot on that rung and one foot on another rung? A. I can only recall that I either had both feet on the second most step of the ladder, or at the same time I went to step one foot down to the next step. Q. Because is that something - is that part of your practice when you did your spray painting, that when you used a ladder, that you might shift the position of your feet? A. Yes. Q. Did you something happen, as far as the hose was concerned, and the job that you were working on, the angle iron? A. The hose got caught on the corner of the job, because the job would come from virtually lying on the floor, three inches from the floor, to the top of the conveyor belt. Q. On what portion of it did it get caught on the corner? A. The lower side. HIS HONOUR: Q. The corner of what? A. The object of the painting. …… Q. When that happened did you do something with the spray gun? A. What do you mean? Q. You were using it in one hand? A. Yes, right hand. I went to change from the right to the left hand. Q. Were you trying to get the hose and pull the hose over? A. Yes, yanked on the hose with left hand, after I have changed guns from the right hand to the left. Q. When you from yanking on the hose, was there any give in the hose, in the sense that the hose would come if you pulled it? A. No, I don't think so. Q. Did you endeavour to pull the job closer to you, so you could complete it? A. Yes. Q. What hand did you use to do that? A. Right hand. Q. Did you have the gun in your left hand? A. Left hand. Q. When that was happening, what happened to you? A. Well, as I'm manoeuvring the angle iron to come and do the last corner, top section, I can't recall that I went to change one foot from one step to the other, and just toppled over. …… HIS HONOUR: Q. So far you haven't told me what happened to you. We had you up on the ladder. You weren't sure whether you were changing foot level or not. There was a hose caught on a corner. Would you go on now please and tell me what happened? A. The ladder toppled over from there, fell to the right side. I fell to the left through the frame of the object, and landed on the steel back face. KENNEDY: Q. Whereabouts did your body come into impact with the? A. The lower back. …… HIS HONOUR: Q. What were you doing with your hands when the ladder fell over? A. Had one hand with the gun, and one hand on the actual job which is movable because it's on track pulleys. So I can move to where I like. Q. You had one hand on the gun and the other? A. On the object. Q. What were you doing with the hand on the gun? A. I used the right hand it do this half of the 2800 in length, and changed hands to do the left side. Q. Were you still pulling on the gun when the ladder toppled, or were you holding the hand steady? A. When I have come back that way -- Q. Could you just answer that question? A. Could you repeat it again? Q. When the ladder toppled over, were you holding the gun steady, or were you pulling on it? A. Pulling on it." 9 In cross examination the plaintiff said that the hoses were not flexible and that the hose attachment for the finishing coat was a solid plastic pipe, although it was capable of bending. 10 The plaintiff gave the following answers to the following questions in cross examination (T 50-52): "Q. It would have been a very simple matter to step down off the ladder and free the air hose, wouldn't it, Mr Stanley? A. No. Q. Why not? A. Because I don't think there was any need for me to step down. Q. You made a decision to pull on the air hose to attempt to free it that way, didn't you? A. To attempt to reach the last spot, yes. Q. When you did that you knew that it was caught, didn't you? A. I didn't really look down then. Q. But you could feel it was caught, couldn't you? A. Yep. Q. And you made a conscious decision to try to free it by pulling on it rather than getting down off the ladder to free it? A. You understand the job is movable from left to right, so if I wanted to get down off the ladder why should I get down off the ladder to change the hose when I can just grab my right hand and move the job along and change hands with this hand and hit it that way if I wanted to. …… Q. You made, I suggest to you, a conscious decision to pull on the air hose in an attempt to free it, that's right, isn't it? A. Yes, okay. Q. And it would have been, I suggest to you, a perfectly simple thing for you to do to get down off the ladder to free it rather than to pull it, do you agree with that or not? A. No. Q. Why not? A. Because if I was - wanted to free it probably at that time I coulda had my right hand but I was positioned and balanced myself I could have moved the job this way a little bit and I would have reached it and the hose wouldn't have been caught. It would have just fell off the edge of it. …… Q. As part of the overall job of spray painting the RSJ item you got up and down from the ladder more than once, that's right, isn't it? A. Once on that specific job, yes. Q. So there would have been no problem in getting down from the ladder in order to free the air hose, would there? A. I don't really know to be honest." 11 A report from Mr Patrick Donohue, a forensic engineer and ergonomics consultant, was tendered in the plaintiff's case. Mr Donohue was not required for cross examination. I propose only to refer to summary paragraphs appearing on pp 1 and 2 of the report: "The writer is of the opinion that, due to the surface contamination there was an inevitable likelihood of slip of the end of one of the stiles of the portable ladder. This ladder was effectively being used as a fixed platform. This ladder was itself an unsuitable platform to use from which to apply paint by pneumatic pressure. This ladder enforced an inappropriate handling regime. It was one instituted by the defendant. The plaintiff was likely to have difficulty in accessing and carrying out his tasks. The potential for a manual handling-related difficulty to arise, both from the handling required of the hosing and its manipulation to suit this awkward siting of man and his workplace tasks, would be foreseeable. It is a situation likely to occasion some form of injury. The plaintiff was not provided with a slip resistant surface upon which to site the stiles. Nor could it be said to be an even , i.e. planar, floor surface . Topographically it would be undulating due to the accumulated debris of paint. The viscoelastic properties typical of paint would apply to that coagulated mass. Easier access, by installing a fixed platform on a clean surface with no debris, would afford a workplace that would be most unlikely to occasion injury of some form from the type of task that the plaintiff had to carry out. These are an obvious means of amelioration. This platform would allow for a more erect posture and a closer positioning of the plaintiff from which to apply the fluidic paint." 12 Mr Sexton of Senior Council submitted that I ought not to find that this accident was caused through any negligence by the second defendant. He submitted that in essence what caused the plaintiff to fall was that he pulled on the air hose in an attempt to free it. This was a conscious decision by an experienced worker. The plaintiff should not have done what he did but should have gone down from the ladder and freed the hose from the ground. 13 Mr Sexton relied upon the decision of the Court of Appeal in Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204. That was a case in which injury was sustained by a person who fell from a ladder in the course of putting up some Christmas decorations in an arcade. It seems to me that Van Der Sluice is plainly distinguishable on the facts and, having regard to the nature of the operation which the plaintiff was required to carry out, the ladder provided was altogether unsuitable as a work platform. Its unsuitability was compounded by the unevenness of the floor on which the ladder was required to be positioned. The plaintiff ought not to have been required to use the ladder provided to paint a length of angle iron over two metres in length employing a heavy handspray gun fitted to a heavy industrial hose. 14 I accept the assessment expressed by Mr Donohue in his report. The plaintiff's accident was one which could, and should, have been avoided by the provision of a suitable, stable working platform. 15 The plaintiff relies not only upon negligence, which I am satisfied has been proved, but also upon breaches of statutory duty under s 34(a) and s 40(1) of the Factories, Shops and Industries Act. It is acknowledged by the second defendant that the recent repeal of these provisions does not prevent the plaintiff from relying upon them for the purposes of this accident, occurring as it did in February 1998. 16 Section 40(1) provided: "There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work." 17 This sub-section was considered by the High Court in the much cited case of Australian Iron & Steel Pty Limited v Luna (1969) 23 CLR 305. In Luna consideration was given to the distinction between means of access and the workplace itself. It is s 40(2) which addresses safety requirements in the workplace. 18 Mr Sexton submitted that s 40(1) does not apply here and I did not understand Mr Kennedy to seek to persuade me to the contrary. In any event, as I see it, the plaintiff was for relevant purposes at his place of work when his accident happened and the operation of s 40(1) is not enlivened. 19 Section 34(a) provided: "In every factory - (a) all floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained." 20 Mr Sexton submitted that the proper maintenance of the floor was concerned with its structural maintenance and not with casual spillages upon the floor surface. Reference was made to the decision of Maxwell J in Johnston v Woolworths Limited (1982) 1 NSWLR 92. That was a case in which his Honour ruled that whether there had been a breach of s 34(a) the Act ought not to go to the jury for its determination in circumstances where the plaintiff fell on a casual spillage of grease on the floor surface. His Honour there referred to an earlier decision of the Full Court in this State in Fenech v Australian Iron & Steel Pty Limited (unreported, 6 December 1968). His Honour in Johnston made reference to Australian Oil Refining Pty Limited v Bourne (1979-80) 28 ALR 529. In their joint judgment in Bourne Stephen, Mason, Aickin and Wilson JJ found it unnecessary to consider whether breach of statutory duty inter alia under s 34(a) was established by proof of a fall due to an area being covered by water and oil. The remaining member of the court, Murphy J, in a separate judgment, determined that it was open to the trial judge to find that the relevant area was not properly maintained. His approach accorded with the decision of the Court of Appeal earlier given in Bourne. 21 Section 34(a) was revisited by the Court of Appeal in Commonwealth of Australia v Tehuia (1984) 3 NSWLR 435. In this case the plaintiff was pushing a structure along the floor of a dock which was covered with sludge. When the object encountered the sludge the plaintiff fell and was injured. The evidence indicated that the sludge had been there for a day or possibly two days. The trial judge left it to the jury to determine whether there had been a breach of s 34(a). On appeal it was held that the trial judge was correct. In his judgment Hutley JA said: "I point out that the definition of 'maintain' contains words not found in parallel English legislation. The trial judge in his summing-up to the jury directed them in respect of the words 'in good order and condition', words which do not appear in the parallel English legislation. In my opinion, courts in this State are not compelled by recognized principles of authority to follow the English decisions: it is our duty to construe the different definition provided by the New South Wales legislation as it stands. For my part, I consider that where there is any relevantly permanent interference with the floor by material being heaped or placed upon it and which interferes with it as a floor, that is, as a means of passage from one place to another, there is a case to go to the jury that that floor has not been maintained in good order and condition." 22 Mahoney JA expressed his agreement with Hutley JA and said this about the earlier decision of the Court of Appeal in Bourne on the issue before the court in Tehuia: "The trend of decision in this Court has, in my opinion, followed the line that what has to be maintained is the floor of the factory. Therefore, taking 'maintain' to mean maintained in good order, condition and repair, and in an efficient state, within the Factories, Shops & Industries Act 1962, s 4, the question is whether the particular floor was, as far as is here relevant, maintained in good order and good condition. In Bourne v Australian Oil Refining Pty Ltd (Court of Appeal, 2 July 1979, unreported), Reynolds JA, in the course of his judgment, referred to the fact that, in that case, water had been lying upon a steel floor for some considerable time, ie, for some weeks. His Honour then said that that indicated negligence. And he added: '... Equally it establishes a case that the place, whether described as a means of access, a floor, a passage or a gangway, was not maintained in good order and condition.' What his Honour there said was, in my opinion, that in his view the fact that the steel floor was affected by water in the way that he had indicated could result in the floor being described as not maintained in good order and condition. His Honour adopted that approach to the factual situation then before him. The other members of the court, my brother Hutley and myself, agreed with what his Honour had said. In my opinion, the question in the present case is whether what affected the floor was such that it could be said that the floor was not maintained in good order and condition. Having regard to the way in which those words were interpreted in Bourne's case, and in the other cases to which Hutley JA has referred, and having regard to the way in which factual situations such as that in Bourne's case have been categorized in this Court, I think there was a case proper to be left to the jury by the learned judge. The construction of this provision is, of course, not beyond argument, as the detailed submissions of Mr Brownie to this Court have indicated. But this Court has taken a particular view of the construction of s 34(a) and the definition of 'maintain' and I do not think that, in the present case, this Court should depart from that view. I do not mean, in saying this, that I regard that view as wrong. A view has been adopted in a matter of construction in which the decision of the court could have gone either way. I think the court should adhere to the view which it has adopted. I agree with the order proposed." 23 It seems to me following Tehuia that it is open to a tribunal of fact in the present case to determine that the floor of the painting booth was not properly maintained, and I make a finding to this effect. I accept the plaintiff's evidence that there was a build-up such as he described below the beam and that by the time the plaintiff had his accident that build-up had been there for a matter of several months, from the time that the plaintiff complained to the safety officer in November 1997. This being so, because it was not a passing or transient one, and having considered the judgments in Tehuia, it seems to me there has been proved a failure to properly maintain the floor. Moreover, I consider it to be more probable than not that this failure rendered the ladder less stable than it otherwise would have been and that the failure contributed to the fall of the ladder. 24 It was submitted by both Mr Sexton and Mr Swinton that I should find the plaintiff guilty of contributory negligence in electing to endeavour to pull the hose free whilst still on the ladder. I am not satisfied that in endeavouring to free the hose in the manner in which he did the plaintiff failed to exercise reasonable care for his own safety. I am not satisfied that there was no slack on the hose that could be taken up or that the plaintiff considered the position to be otherwise. I do not find it unreasonable of the plaintiff to have pulled on the hose. 25 Accordingly, the defendants have not proved contributory negligence. 26 I next consider the issue of apportionment of liability between the defendants. 27 Having been engaged by the first defendant, the plaintiff was sent directly to the premises of the second defendant where he was continually employed. His evidence was that nobody from the first defendant gave him any instruction concerning how he was to do the work with the second defendant and nobody from the first defendant carried out any inspection at the second defendant's premises. An inspection of the booth and of the painting system and of the equipment provided by the second defendant would have revealed the deficiencies which I have identified in concluding that there was breach of duty of care by the second defendant towards the plaintiff. The circumstance that it was the second defendant which provided the workplace and the equipment and the system of work does not exonerate the first defendant which has a non-delegable duty of care towards the plaintiff. 28 I am satisfied that the plaintiff's injury has resulted from the failure on the part of the first defendant as his employer to take reasonable care for his safety. I am, of course, also satisfied that the plaintiff was injured because of the failure on the part of the second defendant to exercise reasonable care for his safety, and because of that defendant's breach of statutory duty. 29 How is liability fairly to be apportioned as between the two defendants? 30 In the course of submissions I was referred to the decision of the Court of Appeal in TNT Australia Pty Limited v Christie & Ors [2003] NSWCA 47. That case concerned inter alia the issue of apportionment as between an employer who operated a labour hire business and a person in whose service the employee was placed. The trial judge apportioned twenty-five percent of responsibility to the employer and seventy-five percent of responsibility to the company in whose premises the employee was working. That apportionment was not disturbed on appeal and relevant principles and authorities were extensively reviewed in the Court of Appeal. Mr Sexton submitted that the present case is analogous in principle to Christie and that an apportionment of twenty-five percent to the first defendant and seventy-five percent to the second defendant would here be appropriate. Both Mr Kennedy and Mr Swinton submitted that something more than seventy-five percent should be apportioned as against the second defendant. 31 I have found that the second defendant failed to exercise reasonable care in the system of work provided, in the equipment it provided, and in the failure properly to maintain the floor of the spray booth. The first defendant owed a non-delegable duty to exercise reasonable care which extended to those areas. Notwithstanding that the accident occurred in the second defendant's premises, in the course of work which the second defendant required the plaintiff to do, using the second defendant's deficient system, equipment and workplace, and in circumstances where the second defendant was in breach of its statutory duty earlier considered, it seems to me to be appropriate, assessing the relative culpability of each of the defendants for the harm suffered, to apportion twenty-five percent of the liability for the damage to the first defendant and seventy-five percent to the second defendant. That apportionment seems to me to pay due regard to the important principle as to the first defendant's non-delegable duty. 32 I turn now to the issue of damages. 33 The plaintiff was thirty-two years of age when this accident happened and he is presently thirty-eight years old. The evidence satisfies me that the plaintiff suffered serious injury to his back. 34 The plaintiff was taken from the factory to Campbelltown Hospital but was not admitted. The morning after the accident he saw his general practitioner, Dr Kana, and he has continued to see him ever since. To begin with the plaintiff was treated conservatively. He said that he had pain extending into the legs and he experienced cramping. His sleep was affected. Dr Kana referred the plaintiff to Dr Manohar and in June 1998 he was referred to Dr Matheson, who advised a period of traction. The plaintiff could only tolerate this treatment for two days. 35 After physiotherapy and hydrotherapy failed to alleviate the pain, Dr Matheson admitted the plaintiff to St Luke's Hospital on 26 August 1998 and a fusion and nerve root decompression procedure was undertaken. The plaintiff was in hospital for seven days. 36 The operation was only successful in alleviating the cramps. To some extent it reduced the back pain. However the plaintiff has complained of significant back pain and disability up to the present time. 37 In August 1999 the plaintiff was admitted to hospital again for the purpose of further surgery. However the surgery did not proceed because of the perceived risk of infection associated with the infection the plaintiff was experiencing in his teeth at the time. The plaintiff has not had the second operation contemplated in August 1999 but he faces the prospect of further surgery in the future. 38 The plaintiff has experienced pain of varying intensity over the years. He has experienced episodes where the pain is so severe he has been unable to move. Indeed, a wheelchair was provided for him. He has used that device on occasions. 39 The plaintiff said that he experiences pain in his back at all times, of varying intensity, and pain in the legs "not quite all the time". He said that the leg pain is worse in the right leg than in the left leg. He is restricted in walking and other activities. He said he has suffered from depression and for a time took antidepressant medication but this caused vomiting and pains in the stomach. 40 The plaintiff said he has been unable to work and he misses his work. His relationship with his wife is strained and the back disability has interfered with the sexual relationship they previously enjoyed. The plaintiff said before the accident he enjoyed working on cars and had a workshop at home where he did cars up. He has done work on several cars since the accident but not for financial reward, and he is restricted in his ability to do that type of work. 41 Generally the plaintiff described limitations as to his pre-accident activities in the home and in the nature of leisure activities. The medical evidence 42 The medical evidence relied upon by the plaintiff was presented in report form. No doctor was required for cross examination. 43 Dr Kana has seen the plaintiff many times since the accident. On 4 December 1998 Dr Kana reported that the plaintiff had been seen twenty-nine times since the accident and was at that point continuing to suffer low back ache. He was being prescribed then, and indeed until relatively recently, MSContin for control of pain, and as at December 1998 Dr Kana noted that the plaintiff was suffering from severe depression which he regarded as being related to the back ache. 44 On 15 May this year Dr Kana reported that the plaintiff would need to be seen by him twenty-six times per year and that the plaintiff was then on medication consisting of Panamax and Naprosyn. 45 As early as 26 March 1998 Dr Kana referred the plaintiff to Dr Manohar, specialist in rehabilitation medicine. Dr Manohar arranged for a MRI scan and that showed a L5-S1 disc protrusion. Because of the plaintiff's presentation and complaints, Dr Manohar referred the plaintiff to Dr Matheson. 46 Dr Matheson made his first assessment in June 1998. He diagnosed a lumbo-sacral disc lesion and thought that the plaintiff was "heading for surgery". However he advised the plaintiff's admission to hospital for five days of traction in the hope that that might settle the plaintiff down. As earlier noted, the plaintiff said it did not and, indeed, that he could not tolerate the traction any longer after two days in hospital. 47 Dr Matheson reported that he operated on the plaintiff on 26 August 1998, carrying out a lumbar discectomy fusion and nerve root decompression. He considered the operative findings to be consistent with a frank work injury rather than aggravation of any underlying degenerative condition. 48 Dr Matheson considered because of persisting symptoms and the plaintiff's drug dependency for relief of pain that it was necessary to re-explore his back and for this purpose he was admitted to hospital again. As earlier noted, the procedure did not take place because of the problem of infection. 49 In August 2000 Dr Matheson recorded that the plaintiff's response to surgery "has been disappointing. If anything, he has been made worse." 50 Dr Matheson has continued to assess the plaintiff from time to time and his most recent report is dated 3 September 2002. The doctor reported at this time: "He has done quite badly with surgery. There is some suggestion on his MRI scans that one of his cages in the fusion system is lose and his fusion may not have taken fully. It may be necessary in the future to carry out a revision fusion but at this stage it is not planned. However, I think eventually this will have to occur." 51 In September 2002 and at all earlier times that Dr Matheson saw the plaintiff, he regarded him as unfit for any work. 52 Dr Deveridge, in his capacity as an orthopaedic surgeon, assessed the plaintiff in June 2000 and again in September 2002. Following the earlier assessment Dr Deveridge expressed the following opinion: "Your client is now quite disabled with unrelenting low back pain, marked stiffness and radicular type symptoms referred to both lower limbs worse on the right side. The medical imaging shows some long standing degenerative changes including lumbo sacral disc narrowing, marginal osteophytes, facet joint arthropathy and lower thoracic vertebral wedging. These changes are excessive for a man of his age, but are long standing and reflect his years of hard physical work. However these changes were causing minimal symptoms and no reduction in work capacity until the fall that occurred on 24.2.98. I consider that he developed L5-S1 disc protrusion as a result of that fall, which necessitated the medical and surgical treatment provided. On the balance of probabilities, ongoing back and leg disabilities are attributable to work injury on 24.2.98. Had this fall not occurred, there is no reason to believe that he would ever had ended up in this state or required spinal surgery. He is permanently unfit for his pre accident employment as a spray painter or panel beater. His degree of disability, and dependence on high dosage morphine, will act against successful rehabilitation for any work for which he may have been suited by education and experience. Future employment prospects will remain very bleak." 53 The more recent assessment in September 2002 did not prompt Dr Deveridge to express a more optimistic opinion about the plaintiff. Dr Deveridge concluded his later report: "He is at or near a point of maximal medical improvement. His condition is chronic and stabilised. The prognosis remains rather poor. The injuries sustained will have a long term impact on his occupational and recreational pursuits and his ability to enjoy life generally." 54 As to work capacity, Dr Deveridge said this in September 2002: "He is permanently unfit for his pre accident employment as a spray painter, panel beater or for labouring work generally. Taking into account his level of disability and his regular need for narcotic analgesia, it would appear that his prospects of returning to the work force are close to zero. Further rehabilitation is unlikely to improve that situation, taking into account his background employment and education." 55 In March 2003 Dr Bashford, who is a specialist physician in rehabilitation and pain medicine, carried out some diagnostic procedures in order to determine whether the plaintiff would benefit from pain relief procedures that the doctor could offer. The evidence about this is inconclusive. 56 Dr McMahon is a genitourinary physician who carried out an examination of the plaintiff in May 2003. That report focuses on the problems the plaintiff has experienced in sexual activity since the accident because of his back disability and I accept the plaintiff's complaints about this, supported as they are by the evidence of his wife and by the content of the report by Dr McMahon. 57 Dr Kana referred the plaintiff to Mr Wenzel, a psychologist. The initial consultation was on 13 May 2002. Mr Wenzel considered, following testing within his area of expertise, that the plaintiff was suffering from a severe level of depression with anxiety symptoms "in the moderate to severe range". Mr Wenzel considered that the plaintiff would benefit from long term psychological management. 58 Mr Sexton tendered a report from Dr Bowers, a rehabilitation specialist. Dr Bowers was not required for cross examination. His report was dated 19 December 2001 and it followed a consultation. Dr Bowers diagnosed a lumbosacral disc prolapse and he considered that there was some non-organic contribution to the plaintiff's complaints. In Dr Bowers' opinion, the plaintiff's stated disabilities exceeded what he would have expected. Dr Bowers considered the plaintiff to be permanently unfit for his pre-injury work, but capable of performing sedentary or light physical work on a full time basis. 59 It was submitted that the plaintiff overstated the extent of his disabilities and a short film was introduced into evidence showing the plaintiff's activities on 12 February and 14 February 2002. In the earlier film the plaintiff was carrying a walking stick but his movements did not suggest that he was heavily dependent upon it. He was seen in the film standing on the grass verge and conversing with others. He was seen to look under the open bonnet of a car. He was seen to enter a car and to drive away. He was seen to ride a bicycle. He was seen to bend down and to straighten up. 60 None of the activities captured on film was to my mind remarkable or inconsistent with the plaintiff's evidence. As to the bicycle, the plaintiff had agreed before the introduction of the film that he was able to ride a bike, and his evidence was that he had been advised to exercise on a bike. The film did not show him riding quickly and he said he only travelled a short distance. 61 I do not consider that the plaintiff understated the level of his disabilities or his symptoms but I did not reach the conclusion that the plaintiff was endeavouring to deceive the Court. The plaintiff's wife gave evidence consistent with that given by her husband and I accept Mrs Stanley as a reliable witness. The medical evidence tendered in the plaintiff's case accounted for such problems as the plaintiff said he was having and my overall assessment was that he was a witness of truth. 62 I am satisfied that the plaintiff did suffer a serious injury at work involving an L5-S1 disc lesion. I am satisfied that the operation carried out by Dr Matheson was not very successful in terms of alleviating the plaintiff's symptoms and that he has been left with very significant pain and disability. It is more probable than not that the plaintiff will require further surgery, and I consider it possible that such surgery will lead to some alleviation in the plaintiff's level of discomfort. 63 I find the plaintiff to be permanently disabled and that the disability impacts upon his work capacity and upon his daily activities and enjoyment of life to a very significant degree. 64 Because I have found both defendants to be liable, it is necessary in this case to undertake discrete assessments of damages. The damages to be awarded against the first defendant are to be determined pursuant to Pt 5 Div 3 of the Workers' Compensation Act, 1987; the damages to be awarded against the second defendant are not restricted by that statutory regime. 65 I propose firstly to assess damages as against the first defendant. 66 Having regard to the evidence I have reviewed and to my assessment of it, I find it appropriate to determine the proportion to be assessed pursuant to s 151G(2) at fifty-five percent. This results in an award for non-economic loss in the sum of $124,657.50. That allowance attracts no interest. 67 The out of pocket expenses are agreed at $77,573.87. I include that sum in the assessment. 68 I next consider the claim for loss of earnings and loss of earning capacity and this has been a contentious issue. Mr Kennedy has submitted that I should find that the plaintiff has been totally incapacitated to date and that he will remain totally incapacitated for the rest of his working life. Mr Swinton and Mr Sexton have submitted that the plaintiff is going to be capable of work in the future and, indeed, that he has been capable of work in the past. 69 The plaintiff left school without having obtained the School Certificate and his evidence is that he had limited reading and writing skills. These limitations prevented him from completing the theory in his panel beating apprenticeship at TAFE. His work experience is largely in panel beating and spray painting. Indeed, he worked with a partner in his own business from 1988 to the end of 1995. He obtained a supervisory position with a demolition company after that, before taking up his position with the first defendant in September 1997. Essentially then, the plaintiff's working history is one of manual labour, employing skills and practical experience as a spray painter, and he also learned skills in a supervisory role with the demolition company. 70 The evidence persuades me that the plaintiff has been unfit for any heavy physical work ever since the accident. I am persuaded by the opinions of Dr Matheson and Dr Deveridge that the plaintiff has been unfit, not only to do work in his trade, but other work up to the present time. Not only has the plaintiff had the physical disabilities and associated symptoms which he described and which these doctors have found, but he has also been suffering from significant depression and the effects of the MSContin. His wife gave evidence, which I accept, that since he was taken off that medication early this year the plaintiff is not so irritable and he is calmer without the morphine based medication. However, until this year the mental state brought about by the MSContin has been a feature that has contributed to what I find to be a total incapacity for employment. 71 The parties are agreed that had he been uninjured and continued in his pre-injury work he would have earned to 11 June 2003 $146,042, and that the current comparable earnings as at that date were $579 nett per week (in round figures). I am satisfied that $155,326 is the measure of his loss of income up to the present, and I include that figure in the assessment. The statute precludes me from making any allowance for interest at this time. 72 The parties are agreed in respect of a claim for past loss of superannuation entitlements that the lost entitlement on the amount I have awarded for past loss of wages is $12,413. That sum I include in my assessment. 73 This brings me to the future. 74 I have earlier recorded the expressions of opinion of Dr Deveridge and Dr Matheson. I have been influenced by those opinions in finding that the plaintiff has been unfit to do any work to date. 75 Mr Sexton submitted that the plaintiff ought to be regarded as having lost but fifty percent of his earning capacity, and in urging such a finding Mr Sexton relied of course upon the opinion of Dr Bowers. 76 I am not persuaded by the report of Dr Bowers that the plaintiff will ever be fit for full time sedentary work or for full time light physical work. The plaintiff has had periods of exacerbation in the past and I think he will continue to have periods of exacerbation in the future, and even without those it seems to me the plaintiff would not, by reason of his persisting symptoms and disabilities, be able to do any form of full time work. Moreover, I consider it unlikely that he will be able to find any suitable part time employment in the future. 77 Mr Swinton submitted that the plaintiff would be able to do some work in self employment. His past experience in his own business would equip him to quote on jobs and to do panel beating work and he could employ people to do the heavy work such as is beyond him. Mr Swinton submitted that with an award of damages the plaintiff would have capital that he could invest in setting up a business and that then there would be scope for him to put to use his residual ability to earn. In weighing that submission, I must appreciate that what I must determine is the plaintiff's residual ability to earn, as opposed to what others can earn for him. 78 The plaintiff impressed me as a person with a good work history and as a person who would be motivated to use any residual capacity in the future. He has an equipped workshop at home and in the past he has done some work on vehicles, although I accept that he has not earned any money from such little work as he has done since his accident. However, in the future, absent morphine based medication, I consider that there is a real chance that the plaintiff will, from time to time, earn some modest sum in employing his panel beating skills in the home environment. However, I do not consider that the plaintiff will ever be able to carry out regular gainful work and his opportunity to earn will be limited to what he does in the home environment or in a very sympathetic outside environment. Any income is likely to be spasmodic and uneven and that the plaintiff may earn some money in the future seems to me is best brought into account by adjusting the allowance I would otherwise have made for the vicissitudes of life. Instead of using a fifteen percent discount figure, I propose to adopt a twenty-five percent discount figure based upon my evaluation of the possibility that the plaintiff may from time to time earn modest amounts. 79 As previously noted, it is agreed that the plaintiff would now be earning in his pre-injury position $579 per week in round figures. The lump sum presently required to compensate for such a loss for twenty-seven years (to age sixty five) on the five percent tables is $453,357. I discount that figure by twenty-five percent and, rounding the calculation off, I therefore allow for future loss of earning capacity the sum of $340,018. 80 The plaintiff claims loss of future superannuation entitlements. The parties are agreed that the plaintiff would have received benefits in his pre injury work had he continued in that work until the age of sixty-five with a value of $59,351. The Court was informed that that sum was arrived at after a fifteen percent discount for vicissitudes. I consider that an adjustment of twenty-five percent to the figure agreed upon before any discount is appropriate in this case, and I therefore allow for loss of superannuation benefits for the future the sum of $52,368. (I have used the same undiscounted figure as that reflected in the agreement of counsel, but instead of an adjustment of fifteen percent I have adjusted by twenty-five percent.) 81 The plaintiff claims some allowance for the cost of future surgery. I referred to this earlier (at para 37). There is no immediate plan for surgery to occur, but I accept the opinion expressed by Dr Matheson in his report of 10 September 2002 that there is "a high likelihood that review fusion will have to be undertaken eventually". It is agreed that the approximate cost of the surgery if it was to be undertaken now would be $26,000. I consider it reasonable to allow $18,000 as a provision for future surgery. That sum can now be invested to provide a fund for surgery at an appropriate time in the future. 82 A claim is made for future medical, domestic and other services extending for the rest of the plaintiff's life. There has been no agreement as to the term for which such services ought to be allowed. The plaintiff has relied on a number of reports from Ms Welshe, supported by actuarial calculations (Exhibit F). In the report dated 5 December 2001 the life tables were relied upon (see Goudkamp and Morrison – Personal Injury Law Manual at 10,061); in a later component of Exhibit F the life expectancy tables are quoted (see, again, Goudkamp and Morrison – Personal Injury Law Manual at 10,060). The plaintiff is now thirty-eight years old, and on the life tables he has forty years ahead of him. On the other hand, the life expectancy tables suggest he has forty-five years to live. The difference is significant. Which tables do I use? 83 Neither counsel addressed as to this, but in a schedule of damages presented as an aid to submissions for the plaintiff, I note calculations for future medical needs based upon the five percent multiple of 924, appropriate for a life expectancy based upon the more conservative life tables. In the circumstances, I propose to adopt the course I took in Beck v The State of New South Wales [2001] NSWSC 278 for the reasons I stated in that case (at para 132), and also because Mr Kennedy used the more conservative tables in the schedule of damages he presented in support of his submissions. Therefore, I will use the life tables and, hence I will regard the plaintiff as having forty years to live. 84 The plaintiff will require medical attention in the future. Dr Matheson has assessed this need, again in his report of 3 September 2002. I accept Dr Matheson's opinion that the plaintiff will need to see a general practitioner monthly and a specialist twice per year in the future. I accept that the average weekly cost of such a regime of treatment at present rates is $16 per week. I therefore allow for future medical treatment the sum of $14,680 (using the five percent tables multiple of 917.6). 85 A claim is made for the cost of future physiotherapy and hydrotherapy treatment, but I am not satisfied that the plaintiff has made out this entitlement. Dr Deveridge opined in his report of 28 June 2000 that physiotherapy and hydrotherapy can be beneficial for a year or two after injury and surgery but that thereafter it is not likely to alter the course of the disability. I am not satisfied that the plaintiff would be helped by treatment of this kind in the future. 86 The next matter calling for consideration is a claim for psychological counselling. The plaintiff claims that provision should be made for psychological counselling for three years. Mr Wensell, psychologist, provided a report dated 16 May 2003 recommending such treatment. The annual cost of such treatment is $1660 ($32 per week). Neither Mr Sexton or Mr Swinton opposed the claim concerning counselling, and I propose to allow it. The lump sum presently required to compensate for such a cost for three years on the five percent tables is $4660 in round figures. I include that sum in my assessment. 87 This brings me to the plaintiff's claim for the provision of services in the nature of personal care, domestic assistance and house-property maintenance. On this issue evidence was given by Ms Welshe. Not only were her reports introduced into evidence, the witness gave evidence by way of videolink. Ms Welshe is a qualified occupational therapist and I am satisfied as to her expertise. The witness saw the plaintiff once for the purpose of her reports, and that was on 5 December 2001. Her evidence as to the plaintiff's needs was based upon the assumption that the plaintiff's condition had not altered since 5 December 2001 and that it would not do so in the future. Ms Welshe agreed in cross examination that she approached her task upon the basis that the plaintiff would have three bad days per week for the rest of his life. It does not seem to me that such an approach is appropriate. No doubt the plaintiff will have bad days in the future as he has done in the past, but I do not consider it to be likely that they will occur as often as Ms Welshe has assumed. This does not accord with the evidence as to his experience to date. 88 "Bad times" were defined by the plaintiff in the evidence as times when the plaintiff had to use his wheelchair and times when he could not move or be moved. The plaintiff was asked about the frequency of such bad days and said this (T 28): "Q. Does that still happen now? A. Occasionally, yes. Q. When you say that you had these bad days, how long would it last for, once you sort of had an episode of pain of that nature? A. Up to two weeks and so on. Q. As far as this year is concerned, about how many occasions have there been, these exacerbations of pain? A. Probably three times, four. Q. How long have they lasted for? A. Couple of days. Q. In those sort of times, does your wife have to look after you, as it were with your -- A. Yes. Q. -- Dressing and washing and things of that nature? A. Yes." 89 The plaintiff gave that evidence on 10 June 2003. Ms Welshe proceeded upon the basis that the plaintiff was going to have three bad days or 156 bad days per year. The above evidence would indicate the plaintiff may have sixteen bad days per year. 90 Of course it is to be appreciated that the task of making provision for the plaintiff's needs cannot be approached as a purely mathematical exercise, but Mr Sexton submitted that the above mathematical exercise demonstrated the flaw in the approach of Ms Welshe. Her fundamental assumption does not sit comfortably with the plaintiff's evidence as to the number of bad days he has actually had. I accept this submission by Mr Sexton. 91 There are other problems in accepting the evidence of Ms Welshe as to the extent of the plaintiff's needs. For instance, the plaintiff has a dog and there was evidence that he had been unable to exercise it. Ms Welshe has made provision for exercising the plaintiff's dog for the rest of the plaintiff's days. Such a claim is not maintainable: see Geaghan v D'aubert [2002] NSWCA 260 and in particular para 53 and following. 92 It is to be noted also that Ms Welshe has made provision for needs for domestic assistance which include a need referable to the support of the plaintiff's youngest child until the age of twenty-five years (see the report of 5 December 2001 at 4.2). Ms Welshe has also allowed for the time spent by Mrs Stanley in assistance with the plaintiff's washing. Such assistance Mrs Stanley gave to her husband before the accident (see para 101 below) and would have continued to provide in any event. 93 Mr Sexton submitted not only that the approach of Ms Welshe ought to be rejected but that a very modest sum only should be provided for the past. Referring to the report of Ms Welshe of 12 June 2003, Schedule A, where the value of past services for care and assistance was calculated at $64,147, Mr Sexton submitted that the Court should allow only for the second, third and fourth quarters of 1998, and thus an allowance of some $12,500. 94 I do not accept that submission. It seems to me that the measure of the compensable need for the past is significantly greater than that for which such an allowance would provide, although it is extremely difficult to determine accurately the measure of such need. 95 The plaintiff gave evidence as to how he was immediately after the accident (T 20): "Q. Can we just deal with this particular time. Did your wife have to provide any service to you? A. Yes. Q. What sort of things did she have to do for you? A. Put my shoes on. Dry me occasionally out of the shower. Dress me. Q. Did she have to get your meals? A. Yes. Q. Was there anything that you could do yourself, that you normally did at that time when you were recuperating at home? A. No not really at all. Occasionally I could do a few things." 96 Following the period of traction to which I have referred the plaintiff had physiotherapy. In the time prior to the operation at St Luke's Hospital on 26 August 1998 he said his wife continued to provide assistance (T 21). 97 When the plaintiff came home from hospital his wife continued to assist (T 22): "Q. Did your wife again provide some services for you? A. Yes. Q. What sort of things did she have to do for you after the operation? A. Oh gee, getting everything ready, dressing, food. Q. Anything else? A. House cleaning. Maintenance. Q. Were you able to do anything yourself around the home, things you might normally do? A. Not for quite a long time." 98 The plaintiff gave evidence of the need which prompted the acquisition of the wheelchair (T 24): "Q. What were the difficulties that you were having in the home, as far as your mobility was concerned? A. Couldn't get out of bed sometimes at all. Great difficulties. Pain. People would pick me up off the bed. We would have the kid's mattress beside the large bed, lift me on to that bed and drag me from one room to the other, so I could get out of bed into the lounge room for the day. Q. Since you have had the operation, and as time has gone by, do you find that there is a constancy in terms of your pain, or does it vary from time to time? A. It varies. Q. In what way does it vary? A. Depending what I'm doing. Q. Do you have pain in your back all of the time? A. Yes. Q. Do you have brain extending into your legs all the time? A. Not quite all the time. Q. In what sorts of circumstances do you find that the pain extends into your legs? A. Pins and needles, like electric shocks, cramp in the toes, depending if I move my ankle forward, or pull the ankle back, the legs will camp. Q. Is one leg worse than the other? A. Yes, the right one. Q. Are there particular activities that seem to make problems with your legs worse than they would normally be? A. I don't recall that question. Could you repeat it again? Q. Would there be things you might do, or certain circumstances where the problems in your legs might be worse? A. Walking they get worse. Q. Are you able to do much walking? A. No, I don't walk very far, no." 99 Then there was the evidence the plaintiff gave as to the bad days which I set out above. 100 Mrs Stanley gave evidence about her husband's needs after he came home from hospital immediately following the accident (T 67): "Q. And in that period when he first came home from the hospital did you have to do things for him and look after him? A. Everything. Q. When you say you had to do everything, just tell his Honour-- A. When he came home from the operation? Q. When he came home from his accident? A. No, not everything then. Q. Just tell his Honour what sorts of things you had to do for him on the occasion that he came from home from the hospital, that was when the accident had occurred, what sort of things did you have to do for him? A. I can't recall that well, just helping him with some clothing, helping him to and from the bathroom, helping him get undressed, drying him. Q. Did you have to get meals for him? A. Yeah. Q. How long did this period last for at that time after the accident when you had to provide this type of assistance to him? A. I don't recall, I'm not sure, I'm not sure. Q. Was it weeks or months? A. Probably weeks to months - yeah, months. Q. As time went by did the problems that he complained about in relation to his back, did they get better or worse? A. Got worse. Q. Was he having any difficulty with his sleep? A. Yes." 101 Mrs Stanley went on to address the period following the plaintiff's surgery (T 68): "Q. And I think he undertook an operation? A. Yes. Q. In August of 1998, is that right? A. Yes. Q. Did you visit him in the hospital? A. Yes. Q. How was he after that operation? A. Terrible. Q. When you say 'terrible', what do you mean by that? A. I went the day he got operated on, so he was still under a little bit, he wasn't with it properly. Q. Was he complaining about pain when you went to see him? A. He was not long after out of the anaesthetic, yes, he looked very sick, he didn't even talk much. Q. Did you provide any assistance to him while he was in hospital or did you provide assistance when he came home? A. When he came home. Q. When he came home what assistance did you need to provide to him? A. Everything. Q. When you say 'everything', could you indicate to his Honour the types of things you had to do for him in this period after he came home from the operation? A. When he came home he slept in my daughter's room because he couldn't get into our bed. He just stayed there, he was bedridden, everything, took his food in to him, took his drinks in to him, took his medication in to him. He was in bed a lot and that, he just stayed in Natika's bed. Q. What about going to the toilet? A. Yes. Q. Did you have to assist him with that? A. Yes. Q. What about his washing and clothing? A. Yes, I did that - I've always, yep. HIS HONOUR: Q. I suppose you always have? A. Something that wives do, isn't it? KENNEDY: Q. How long did this period last for when you had to provide him with this level of assistance after the operation? A. I don't know like how long - it was a long time. Q. How long did he remain in bed for after the operation? A. He was probably laying down three weeks - yeah, not moving much." 102 Mrs Stanley said that there were occasions when the plaintiff used a wheelchair. This happened "not very often, only a few times", and "just at home, from room to room, bathroom" (T 70). 103 Further (T 70) Mrs Stanley said: "Q. As far as his pain and disability is concerned, to your observation, has that been a constant thing or has it had its ups and downs? A. Always there but ups and downs. Q. Have there been occasions when it has been quite serious in terms of his physical incapacity? A. Yes. Q. What sort of things have happened in relation to his capacity from time to time? A. He just wakes up or just moves and he's stuck - yeah. Q. He can't move? A. Yes, he might move the wrong way and then he's stuck, like 'Help me'. Q. How has that been handled when he gets to a point where he can't move, does he stay in his own bed or get into another bed or what does he do? A. Stays in bed and when he can't handle that any more we help him to another room for how long he stays there. Q. And these sort of episodes where he can hardly move; how long would they last? A. A few days, sometimes not that long. Q. What's the longest period of time that they have lasted? A. Probably say five days, probably say. Q. On those occasions, have you had to provide a similar sort of assistance to him that you have indicated to his Honour that you have provided in the past? A. Yes." 104 When asked whether the plaintiff requires assistance with his clothing or getting dressed or undressed, Mrs Stanley said: "Not recently, just maybe socks and shoes" (T 73). 105 I accept the evidence of the plaintiff and of his wife which I have reviewed above. 106 Moreover, there is medical evidence which supports the plaintiff's claim that provision ought to be made for domestic assistance both in the past and for the future. 107 Dr Matheson reported in September 2002 that he regarded a report from Ms Welshe which he had seen concerning aids and activities of daily living to be a reasonable report. Dr Deveridge reported on 28 June 2000 that the plaintiff was going to require ongoing home care and opined: "Such home care would probably amount to at least six hours weekly and for a more accurate assessment you may need to engage a professional home care service or occupational therapist." 108 In trying to measure the plaintiff's reasonable requirements for the past, it seems to me that the estimate of Dr Deveridge is closer to the mark than the conclusions reached by Ms Welshe, but to attempt mathematical precision in any allowance is, to my mind, an impossible task. Doing the best I can, I propose to allow the sum of $26,000 for the claim for the past for the provision of domestic services and the like. I observe that the allowance I have made approximates to allowing six hours per week for the past. Such a provision is, to my mind, appropriate as allowing not only for personal care and domestic duties but also for property maintenance. 109 The plaintiff's needs in the future will taper somewhat when his children no longer require the level of assistance that they do at present and when the plaintiff reaches that stage of life where he does not have the responsibility of maintaining a home to cater for his children. The plaintiff has two daughters who, when Ms Welshe submitted her report of 5 December 2001, were aged four and eight years. Whilst I think it unlikely that the plaintiff's medical condition will change very much in the future, the plaintiff has a life expectancy of forty years, and I consider it to be not unreasonable to measure the average weekly need over such a lengthy period as being of the order of four hours per week. Those longer periods of more intense need in the past are not likely to occur in the future, but the plaintiff will continue to experience bad days intermittently, and I consider overall that four hours per week, on average, will cater for all his compensable needs for the future. The lump sum presently required to compensate for the cost of ongoing care at $72 per week (that is four hours at the agreed rate of $18 per hour) is $66,000. I consider an appropriate allowance for future care costs is $66,000, rounding the calculation off. 110 The final claim to be considered is the claim for provision for equipment needs. 111 In respect of this claim, the plaintiff relies upon the evidence of Ms Welshe who attended the plaintiff's home for two hours, inter alia for the purpose of making this assessment. The relevant assessment is set out in the report of Ms Welshe of 12 June 2003 in which these items of equipment were identified: (i) manual wheelchair; (ii) forearm support wheeled walking frame; (iii) Canadian crutches; (iv) single walking stick; (v) rail at side of bath; (vi) custom made bath board; (vii) bath seat; (viii) hand held shower rose; (ix) trolley with basket for transporting items around the house; (x) wedge ramp for bathroom entrance; (xi) raised toilet seat; (xii) grab rail opposite the toilet; (xiii) freestanding rail opposite the external stairs along the length of the patio; (xiv) bed ladder; (xv) high adjustable orthopaedic chair; (xvi) long handled easy reacher; (xvii) long handled toe wiper; (xviii) long handled shoe horn; (xix) orthopaedic bed. 112 The defendants have submitted that a need for all the above equipment has not been proved, and I accept this submission. Dr Matheson wrote on 3 September 2002, concerning the list prepared by Ms Welshe: "I reviewed the letter from Claire Welshe concerning the aids and activities of daily living. I thought this was a reasonable report, unlike some of the reports that are prepared for disabled patients and I would be supportive of that report." 113 However, Dr Matheson went on: "As far as palliative equipment is concerned, I have some more doubts about this. I think in public it is probably reasonable for him to carry a walking stick, but I would be opposed to him using a wheelchair. I think he is better off to get around without the use of a wheelchair and I would not support its purchase." 114 As to the wheelchair, the plaintiff's evidence was that he was provided with one but he last used it at the end of 2002 (T 58). Accepting as I do what Dr Matheson has written concerning "palliative equipment", I do not consider that the claim for the cost of providing a wheelchair for life has been made good. Nor am I satisfied that the plaintiff requires now or will in the future items (ii), (iii), (vi) and (vii) in the above list. Ms Welshe was asked in the witness box about the bed ladder. Having considered her evidence, I am not satisfied there is a reasonable need for this provision. The claims in respect of items (ix), (xv) and (xix) also fail. However, I propose to make some provision in respect of the equipment needs otherwise identified by Ms Welshe, quantifying such need by reference to the costings and replacement periods that expert has recorded in her report of 12 June 2003 at pp 11 and 12 (see Exhibit F). I quantify the ongoing need for provision of equipment at $4.30 per week, and, accordingly, I allow for the future the sum of $3945, rounding the calculation off. 115 The parties are agreed that there is a Fox v Wood adjustment to be made of $20,593.58, and I include that figure in my assessment. 116 Accordingly, I summarise my assessment of damages against the first defendant as follows: Allowance for non economic loss $124,657.50 Out of pocket expenses 77,573.87 Past loss of wages 155,326.00 Past loss of superannuation benefits 12,413.00 Future loss of earning capacity 340,018.00 Future loss of superannuation benefits 52,368.00 Cost of future surgery 18,000.00 Cost of future medical treatment 14,680.00 Future counselling 4,660.00 Past provision of domestic services 26,000.00 Future care costs 66,000.00 Equipment needs 3,945.00 Fox v Wood adjustment 20,593.58 $916,234.95 117 I will proceed now to assess damages as against the second defendant. In that assessment it is appropriate to substitute resort to the three percent tables where otherwise the five percent tables would be used against the employer. 118 The assessment of an appropriate allowance for the non economic aspects of general damages is not, of course, restrained as against the second defendant by s 151G of the Workers' Compensation Act. I consider that an appropriate allowance for the non economic aspects is $135,000. I apportion $67,500 for the past and I award interest on that figure in the sum of $7425. 119 The next figure to be included in the assessment is the agreed sum of $77,573.87 for out of pocket expenses. 120 Turning to loss of wages and loss of earning capacity, for reasons already stated the case attracts $155,326 for past wage loss. That sum would ordinarily attract interest after bringing into account periodic payments of workers' compensation received by the plaintiff. However, in this case I note that for some reason the periodic payments which have been received total $164,705.51, a figure in excess of the established wage loss. With this in mind I award no interest for past wage loss. 121 The plaintiff is to be compensated for loss of earning capacity for the next twenty-seven years and for the reasons stated I propose to measure that loss at $579 per week, but apply a discount rate of twenty-five percent. Adopting this approach and applying the three percent tables, I quantify the allowance for loss of earning capacity for the future at $421,483, rounding the calculation off. 122 In respect of the claim for superannuation loss, the allowance for the past agreed upon in the amount previously stated attracts interest as against the second defendant, and I allow $3413 on the past allowance of $12,413. I allow for the future loss of superannuation benefits the sum of $52,368. 123 The next item is the allowance for future medical expenses. For reasons earlier stated, the future cost is quantified at $16 per week, and by reference to the three percent tables the lump sum presently required to compensate for this need for the future is $19,585. 124 The cost of counselling to be provided for is $32 per week for three years. Using the three percent tables, the lump sum required to compensate for that need for three years if $4793. 125 The plaintiff is entitled to $26,000 for domestic care and assistance for reasons earlier stated. However, the allowance against the second defendant for the future is to be calculated by reference to the three percent tables and not at the agreed Workers' Compensation Act hourly rate. On the contrary, the parties are agreed that the appropriate hourly rate is $25. The lump sum presently required to compensate the plaintiff for his future need at $100 per week is $122,410. 126 Turning to the allowance for future equipment needs and quantifying the weekly measure of the need at $4.30 for reasons earlier stated, resort to the three percent tables provides a figure of $5263, in round figures. 127 It is necessary again to bring into account the Fox v Wood adjustment of $20,593.58. 128 Accordingly, I summarise the assessment of damages as against the second defendant as follows: Allowance for non economic loss $135,000.00 Interest on past allowance 7,425.00 Out of pocket expenses 77,573.87 Past loss of wages 155,326.00 Future loss of earning capacity 421,483.00 Past loss of superannuation benefits 12,413.00 Interest on past lost superannuation benefits 3,413.00 Future loss of superannuation benefits 52,368.00 Future medical expenses 19,585.00 Future counselling 4,793.00 Past provision of domestic services 26,000.00 Future care costs 122,410.00 Equipment needs 5,263.00 Fox v Wood adjustment 20,593.58 $1,063,646.45 129 I record the agreed amount of benefits paid under the Workers' Compensation Act: Out of pocket expenses $74,694.63 (Unpaid 2,879.24) Periodic payments 164,705.51 $239,400.14 130 As indicated in the course of submissions, I propose now to publish my findings on the issue of liability and my assessments of damages as against the first defendant and the second defendant. I will invite the parties to bring in short minutes as to the appropriate judgments and orders in consequence of the findings and assessments now published. Formal findings and assessments 131 1. I find the first defendant to have been negligent. 2. I find the second defendant to have been negligent. 3. I do not find the plaintiff to have been guilty of contributory negligence. 4. I apportion twenty-five percent of the liability for the damage suffered by the plaintiff to the first defendant and seventy-five percent of the liability for the damage suffered to the second defendant. 5. I assess total damages as against the first defendant in the sum of $916,234.95. 6. I assess total damages as against the second defendant in the sum of $1,063.646.45. 7. The matter is to be listed on Friday 17 October 2003 to afford to the parties the opportunity to agree upon short minutes as to the appropriate judgments and consequential orders, to be presented on that date. ********** Last Modified: 10/17/2003 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.