New South Wales Supreme Court CITATION : Alan Milsom v Integral Energy [2003] NSWSC 352 HEARING DATE(S) : 1/04/03,2/04/03 JUDGMENT DATE : 30 April 2003 JUDGMENT OF : Cripps AJ DECISION : See para 37 CATCHWORDS : Damages - severe burns - plaintiff given light work - light work abandoned before trial LEGISLATION CITED : Workers Compensation Act 1987 s151L CASES CITED : Medlin v The State Government Insurance Commission (1995) 182 CLR1 PARTIES : Alan Milsom - Plaintiff Integral Energy - Defendant FILE NUMBER(S) : SC 20535/00 COUNSEL : P. Blacket SC, W.D.H. Walsh - Plaintiff M. Williams SC, R. Sheldon - Defendant SOLICITORS : Turner Freeman Solicitors - Plaintiff Leigh Virtue & Associates - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Cripps AJ 30th April 2003 20535/00 – Alan Milsom v Integral Energy JUDGMENT 1 HIS HONOUR: The plaintiff was electrocuted on 26 March 1999 in the course of his employment as a linesman by the defendant. Liability has been admitted and the matter before the court is for an assessment of damages only. 2 He suffered 15 % electrical burns involving his abdomen, right forearm and left hand. He was admitted to the Concord Hospital Burns Unit and had a number of operations for debridement and skin grafting. He was discharged from hospital on 7 May 1999 and thereafter had physiotherapy treatment and daily dressing changes by a private nurse. He was readmitted to Concord Hospital on 15 July 1999 and was operated on by Dr Perkins for release of right carpal tunnel and synovectomy. 3 According to the doctors the plaintiff made a remarkable recovery. He resumed work on light duties in March 2000. A position was created for him. He could no longer do the work of a linesman. He resigned in October 2002. 4 It is unnecessary for me to detail the medical reports because there does not seem to be any dispute between the parties concerning the severity of the plaintiff's injuries and their long term consequences. 5 The plaintiff now has significant reduction in manual dexterity and strength in both hands as a result of the accident. He developed an abdominal hernia and has gross abdominal scaring. Dr Masson who operated on him in 1999 expressed the opinion in October 2000 that the plaintiff had sustained 30 % bodily disfigurement. He was of the opinion that he had sustained 55 % loss of the permanent use of his right arm below the elbow and 62 % permanent loss of efficient use of his left arm below the elbow. 6 On 9 February 2001 Dr Haertsch examined the plaintiff. He found amongst other things, a significant lack of dexterity and power in the right hand which is clawed. He was of the opinion that the plaintiff had developed an abdominal hernia because of the loss of abdominal musculature resulting in him having continually to wear a corset. He had significant scarring of his right forearm and left hand. Dr Haertsch thought he had 60 % of the most severe case of severe bodily disfigurement, 60 % of the loss of the efficient use of the right arm and 30 % loss of the use of the left arm. 7 Dr Drew examined him in February 2003 and after referring to his disabilities which included lack of sensation in both hands concluded that his condition had stabilised but that he would probably benefit from manipulation of the right shoulder under anaesthetic. 8 Dr Perkins operated on the plaintiff on 15 April 1999 and later on 15 July 1999. In his report dated May 2002 he expressed the opinion that the plaintiff had made a "miraculous recovery" but pointed out that he had permanent disabilities in both hands and his abdomen which would markedly reduce his capacity to do the type of work he had undertaken before the accident. Because of his abdominal hernia he was unable to undertake heavy lifting and the injuries to both hands restricted his ability to perform fine motor tasks. Dr Perkins was of the opinion that the plaintiff's condition would not improve and he did not think further surgery would improve his hand. 9 The plaintiff's recovery was beyond the expectation of his treating doctor and was in no small part due to his positive attitude and his diligence in adhering to his rehabilitation regime. 10 The plaintiff now wears a sock abdominal corset with velcro fastened from behind. Dr Drew was of the opinion that the plaintiff might benefit from manipulation of the right shoulder under anaesthetic. However and subject to this his disabilities are permanent. 11 I record that in general I accept the medical evidence adduced by the plaintiff with the qualification that I do not accept the opinion of Dr Lewis-Enright to the effect that in the future the plaintiff would suffer post traumatic stress disorder. The plaintiff has been seen by a psychiatrist who thought it was remarkable that he was able to function as well as he did bearing in mind the injuries he suffered. He was of the opinion however that he was not suffering from post-traumatic stress disorder and given the length of time since the accident he is unlikely to do so in the future. Dr Morse believed his self-esteem had suffered and his confidence had been lowered by reason of his inability to undertake physical activity of the type he undertook before the accident. 12 The plaintiff was on born on 30 April 1944. He was almost 55 at the time of the accident and had a life and working life expectancies of 24 years and 6 years respectively. 13 The plaintiff had worked for the defendant for 33 years as a linesman. He did not accept promotion. 14 Before the accident he played touch football, tennis, surfed, fished, went bush walking and was generally very active. He still can walk, ride a bicycle, drive motor vehicles and mow lawns albeit with some difficulty. He is unable to function as a linesman and, now that he has resigned his light duties, I do not think he will be re-employed in the future. 15 The issues to be determined are as follows. 1. What economic incapacity had resulted or will result as a result of the accident to date and in the future. 2. How many hours of assistance the plaintiff needs to perform day to day tasks. 3 The cost of medical treatment in the future, 4. What modifications are needed to the plaintiff's home at Campbelltown and weekender at Lake Tabourie. Economic Loss 16 The plaintiff has claimed the sum of $103,203 being loss of wages from 26 March 1999 to 1 April 2003. On his behalf his loss is calculated by reference to what are said to be the earnings of two comparable employees Mr Marlin and Mr Williams. The plaintiff claims the difference between their average net wages and that earned by him during the relevant period. The defendant contests the plaintiff's claim. It submits that Mr William and Mr Marlin were not comparable employees because both men worked more overtime than the plaintiff and also because the plaintiff, by resigning his employment in October 2002 could not thereafter claim that his severely diminished earning capacity had been productive of economic loss – not at least into the foreseeable future. 17 The defendant submits that Mr Roberts was a more reliable comparable employee and that I should have regard to his net earning through the periods ending 1999 to October 2002 as providing a reliable estimate of the plaintiff's earning capacity for the purpose of determining what he could have earned had he not been injured. 18 The evidence as to comparable employees is somewhat scant. Doing the best I can on the limited amount of material before the Court I have concluded that the plaintiff's net weekly earnings but for the accident would have been as follows: From 26 March 1999 to 30 June 1999 $600 The year ending June 2000 $620 The year ending June 2001 $700 The year ending June 2002 $850 July 2002 to date and continuing $860 19 Accordingly I award the plaintiff an amount of $83,249 for loss of earning to date of trial being the difference between what he earned ($72,395) and what he would have earned had he not been injured ($155,640). As will be seen I have included in the award an amount of $860 per week from October 2002 to date because I do not accept the defendant's submission that the plaintiff has failed to mitigate his damages by resigning his employment. 20 As is apparent I have neither accepted the average net earnings of Messrs Williams and Marlin nor Mr Roberts as the basis of awarding compensation. That is because in the case of Roberts, although he was a comparable employee for the year ending 1998 he thereafter suffered a heart attack and, I infer, was on light duties for most of the period of the review. So far as Messrs Williams and Marlin are concerned I have formed the opinion that probably they did more overtime work than the plaintiff who, as I find, was not as enthusiastic in the pursuit of overtime as other co-employees. 21 I have referred to the circumstance that the plaintiff resigned his employment in October 2002. On behalf of the defendant it is submitted that thereafter and for the foreseeable future the plaintiff is precluded from making a claim for loss of earning capacity because, although his earning capacity unquestionably was diminished he did not suffer financial loss as claimed. Of course, even if the defendant's submission were accepted the plaintiff would still be entitled to compensation being the difference what he was earning on light duties and what he could have earned had he not been injured and I do not think this proposition is disputed by the defendant. The defendant submits that I should allow $50,000 as a "buffer" because it accepts that the plaintiff's diminution of earning capacity would make it difficult for him in the future to obtain gainful employment. 22 In Medlin v The State Government Insurance Commission (1995) 182 CLR1 the High Court held that to obtain compensation for loss of earning capacity it is necessary to establish (a) a physical diminution of working capacity and (b) that that diminution was productive of financial loss. Mc Hugh J at p 22 considered the question of onus of proof and was of the opinion that it was on the defendant to establish either failure to mitigate or intervening cause. It was submitted in the present case that the onus is on the plaintiff to establish that he has taken all reasonable steps to mitigate his damage (see s 151L of the Workers Compensation Act 1987). I am by no means sure that this submission should be accepted. But however that may be I have approached this case on the basis that because the plaintiff resigned the onus is on him to establish that his conduct was reasonable. 23 I have already referred to the very serious injuries suffered by the plaintiff and to his stoicism and determination to rehabilitate himself. He was given light work which involved simple clerical work and some field work delivering pamphlets to people informing them of work proposed to be undertaken by the defendant. He returned to work on 10 March 2000 working two hours a day. In April he increased to four hours a day and by June 2000 he was working six hours a day. Finally he worked eight hours a day. Asked why he stopped working in October 2002 he said: "The job work-wise wasn't going anywhere and I was just, seemed to get exhausted just getting up for work, like getting up at half past five a morning, doing the exercises, like, the stress on the shoulders, putting the cream on my body, on the scars, as you must do, then just driving to work". 24 The plaintiff was not cross-examined in terms to suggest that his decision to resign his employment was not connected with his injuries. He had referred to the circumstance that he and his wife had some months previously acquired a weekender at Lake Tabourie and, it was submitted by the defendant, that I should conclude that he resigned in order to take advantage of his newly acquired weekender. I accept that having a weekender contributed to the plaintiff's decision to cease work. However I have come to the conclusion that he ceased work because he had had just about enough. All doctors point to his determination and stoicism. This is not a case of a perfectly healthy person abandoning employment because he wished to change his style of living. Considering the plaintiff's disabilities it is remarkable, in my opinion, that he was able to continue to attend his employment for as long as he did. It appeared to have been submitted by the defendant that the plaintiff should have consulted doctors as to whether he should resign his employment. I think there are two answers to this. First I do not think it was necessary in the circumstances of this case, for the plaintiff to consult his doctors about this matter. It is for the Court to determine whether his conduct was reasonable. Physically it was possible for him to do the work but it was attended by significant difficulties and I do not think the plaintiff was acting unreasonably in deciding to stop work. Secondly and if he had I have no doubt he would have been told that his decision was reasonable. 25 Accordingly I have come to the conclusion that the plaintiff has established that his decision to cease work was reasonable. 26 That being so I find the plaintiff's future loss of earnings is to be assessed by reference to an assumed earning capacity of $860 per week until aged 65. Applying the agreed multiplier of 271.4 to an assumed 6 years working life and reducing the sum total by 15% (on account of vicissitudes) I award the plaintiff for future economic loss the sum of $198,101 together with an additional sum of $23,306 for loss of superannuation benefits. Griffiths v Kerkemeyer 27 The experts in rehabilitation have widely divergent views concerning the reasonable needs expressed in terms of hourly assistance. The plaintiff and the defendant each referred the matter to three experts. On behalf of the plaintiff it is submitted that I should accept the evidence of Dr Lewis-Enright and conclude that he needs between 35 and 49 hours of assistance per week (which would include handyman assistance as well as domestic assistance). Dr Buckley on behalf of the plaintiff assesses the need at 24 hours and Ms Tchan also on behalf of the plaintiff assesses the need at 16 hours per week. On behalf of the defendant Professor Richard Jones refers to "several hours of home handyman assistance each month". Dr Hughes is of the opinion that 2 hours per week is needed and Ms Oates is of the opinion that 4 hours per week is sufficient. 28 I have not found the evidence of Dr Lewis-Enright persuasive. I have already referred to an aspect of his evidence which I did not accept. He also referred to the need for the plaintiff to have advanced computer technology. The plaintiff never raised this matter himself. 29 Dr Buckley has expressed the opinion that it would be reasonable for the plaintiff to have a travelling companion in view of the difficulties he might have with his luggage. The plaintiff's wife, however saw no problems in that regard. The plaintiff in evidence said he was able to shower but Dr Buckley has included assistance in showering as part of his need. In fairness to the plaintiff I should mention that these were claims made on his behalf. Generally speaking I accept the plaintiff's evidence as to what he can and cannot do and have calculated his "needs" on the basis of his evidence rather than on the supposititious opinions of the experts. 30 Doing the best I can I allow the plaintiff an amount of $72,036 calculated as follows: 7 May 1999 to 1March 2000 43 weeks @ 40 hours per week x 18 = $30,960 1 March 2000 to 30 June 2001 69 weeks @18 hours per week x 18 =$22,356 1 July 2001 to 1 September 2002 65 weeks @12 hours per week = $14,040 30 September 2002 to 1 April 2003 26 weeks @10 hours per week x 18 =$4,680 From 1 April 2003 and continuing for the life expectancy of the plaintiff of 24 years, 1,248 weeks @ 10 hours per week x 18 the present value is $132,804. 31 Past out of pocket expenses are agreed at $168,596. The difference between the amount contended for by the plaintiff and the amount submitted by the defendant for future medical expenses depends upon the view I take of the need for the plaintiff to have physiotherapy three times a week at $110 per visit. Were I persuaded that the plaintiff will have physiotherapy treatment three times a week for the remainder of his life he will be entitled to the amount claimed by him namely $242,459. The defendant has admitted that the plaintiff will require further physiotherapy but does not agree that the cost of it should be assessed upon the basis of three visits per week for the rest of the plaintiff's life. It is, I think, fairly clear that the plaintiff will require further physiotherapy treatment. He has in the past gone for periods without physiotherapy and he has suffered some stiffening as a result. Doing the best I can I have allowed for the need for continuing physiotherapy of approximately 75 visits per year. Upon that assumption and taking into account the agreed items I would award the plaintiff the sum of $115,000 for future medical expenses. There is no likelihood in my opinion of future operations other than a possible future shoulder manipulation for which I allow a sum of $3,000. As to the operation proposed by Dr Fiona Wood the plaintiff has made it fairly clear he is not prepared to undergo that operation and his decision in that regard is not challenged. Other than the possible future shoulder manipulation all the other doctors seem to think no further surgical intervention is desirable or necessary. Home Modifications 32 The plaintiff claims the sum of $31,599 for modifications to his Campbelltown and his Lake Tabourie houses. I have come to the conclusion that in the foreseeable future and notwithstanding the fact that the plaintiff's father is living with the plaintiff's sister in Baulkham Hills the plaintiff and his wife will move to Lake Tabourie. That is what he wishes. Accordingly I do not accept a need for anything other than minor modifications to the Campbelltown house. 33 I propose to make an allowance for some minor modifications for the Campbelltown house which I would assess at $4,000. So far as Lake Tabourie is concerned I accept that there is a need for air conditioning and I accept the evidence of Mr Pritchard that the cost of carrying out work at Lake Tabourie to meet his reasonable needs include air conditioning and the upgrading of a swimming pool for therapeutic purposes. I accept the cost of $9,000 to which should be added a recurring cost of $2,000 per annum for the rest of his present life the present value of which is $29,480. 34 Although evidence has been given concerning the desirability of the plaintiff having special modifications for a car the evidence is rather thin on the ground concerning whether this is, in truth, a need bearing in mind that the plaintiff can drive the cars he presently drives, one of which is a manual. On his behalf an amount of $63,917 is claimed for a different car. However I am not persuaded that this need exists. I appreciate that the plaintiff has difficulty in driving however I am not persuaded he needs a vehicle of the type suggested by Dr Lewis-Enright. Doing the best I can I would allow him the sum of $10,000 and, in addition, the sum of $11,114 being the present value of the amount he will have to pay someone else to carry out the maintenance of his car and his wife's car. 35 In my opinion the plaintiff should be assessed as being 75% of a most extreme case. The prescribed amount for a most extreme case at the date of accident was $232,400. I have already referred to the disabilities assessed by the plaintiff's medical advisers and although I reject the evidence that he is likely to suffer from post traumatic stress disorder he has suffered intermittent depression consequent upon his disability and from sexual dysfunction which, in turn, is a result of his disabilities. He is not likely to improve and may have problems with his back as a result of the loss of abdominal muscles. He was an energetic active man before the accident and he can no longer do a number of things he could do before the accident that were enjoyable for him. He suffers embarrassment due to his scarring and disfigurement. 36 75 % of the amount prescribed for the most extreme case is $174,300. 37 Accordingly I award the plaintiff the sum of $ 1,035,036 being made up as follows; Pain and suffering 75 % of the most extreme case $174,300 Economic Loss to date of trial $83,249 Loss of superannuation benefits (as agreed) $5,184 Past out of pockets expenses (as agreed) $168,596 Future medical expenses $115,000 Future economic loss $198,101 Future loss of superannuation benefits $23,306 Griffiths v Kerkemeyer To date of trial $72,036 Future $132,804 Home modifications $42,480 Car $10,000 Fox v Wood $9,980 Total $1,035,038 ********** Last Modified: 05/02/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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