New South Wales Supreme Court CITATION : Ibrahim v Bell Scaffolding & Anor [2004] NSWSC 400 HEARING DATE(S) : 9, 10, 11, 12, 22, 25 & 26 March 2004 JUDGMENT DATE : 14 May 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The defendants are to pay the plaintiff the sum of $1,642,057.51 for damages; (2) Subject to previous orders in favour of the defendants, the defendants are to pay the plaintiff's costs as agreed or assessed.; (3) The Fox v Wood component is reserved; (4) The Fox v Wood component is stood over to Tuesday, 18 May 2004 at 10.00 am for argument. CATCHWORDS : Rehearing of an arbitration - personal injury - fall from scaffolding Froom v Butcher [1976] QB 286 Gunning v Fellows (1997) 25 MVR 97 CASES CITED : Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Pennington v Norris (1956) 96 CLR 10 Sungravure Pty Limited v Meani (1964) 110 CLR 24 Van Gervan v Fenton (1992) 175 CLR 327 Ibrahim Ibrahim (Plaintiff) PARTIES : Bell Scaffolding Australia Pty Limited (First Defendant) Summit Design and Construction Pty Limited (in Liq) (Second Defendant) FILE NUMBER(S) : SC 20534/2001 Mr C Evatt with Mr M Rollinson (Plaintiff) COUNSEL : Mr F Doak (Defendants) Mr D Hansen, Carters Law Firm (Plaintiff) SOLICITORS : Ms C Romeo, Ebsworth & Ebsworth (Defendants) CONTENTS Page Introduction 2.1 Background 3.2 The accident 4.7 Contributory negligence 6.13 Damages 7.15 Medical reports 10.21 Video evidence 12.28 General damages 14.31 Out of pocket expenses 14.32 Past out of pocket expenses and interest 14.33 Fox v Wood 14.34 Past and future economic loss 14.35 Past economic loss 18.45 Residual earning capacity 18.46 Past superannuation loss 20.48 Future economic loss 20.50 Future superannuation loss 20.51 Past domestic assistance 21.52 Future medical and pharmaceutical expenses 23.59 Equipment 24.62 Judgment 25 Schedule 26 Exhibits G & J 27 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 14 MAY 2004 20534/2001 - IBRAHIM IBRAHIM v BELL SCAFFOLDING AUSTRALIA PTY LIMITED & ANOR JUDGMENT (Rehearing of an arbitration - personal injury - fall from scaffolding) 1 MASTER: The plaintiff seeks damages for personal injuries sustained in an accident which occurred on 1 April 1999 when scaffolding he was working on collapsed. He fell and suffered personal injuries. The first defendant is Bell Scaffolding Australia Pty Limited (Bell Scaffolding) who erected the scaffolding. The second defendant is Summit Design and Construction Pty Limited (in liquidation) (Summit) who was the head contractor and had care, control and management of the building work being undertaken on the premises at Williams Parade, Dulwich Hill. The defendants deny liability and allege contributory negligence. The cross claims were not pressed. The second defendant has sought a rehearing after arbitration. Background 2 The plaintiff was born on 5 February 1970 in Sydney and grew up in Marrickville. He was 29 years of age when the accident occurred. He is now 34 years old. 3 The plaintiff grew up in Marrickville and is one of eight children. The plaintiff completed his Year 10 School Certificate at Wilkins High School. In about 1986 the plaintiff commenced his tiling apprenticeship. In 1990 after attending TAFE he completed his apprenticeship as a tiler with Ace Contractors Pty Ltd. Once qualified he carried out work as a subcontractor for the next 6 years. In 1994 he was involved in a motor vehicle accident. He suffered whiplash and was off work for 2 weeks. After this period the condition resolved and he returned to his normal work. 4 The plaintiff was physically fit and healthy. In 1996 he married his wife Pelin Ibrahim. She was attracted to him because he made her laugh. He enjoyed golf, power walking with his wife and gardening. Nearly every weekend they would go to a nightclub as they enjoyed dancing. The plaintiff's wife described the plaintiff prior to the accident as being happy. He would come home from work, earlier than his wife and prepare the evening meal. He undertook household tasks such as washing, ironing, vacuuming, mopping and cleaning. The plaintiff would surprise his wife and cook interesting meals when she arrived home from work. He did the gardening and washed the car. The plaintiff's wife estimated that he spent between 10 to 15 hours each week on household chores. As the plaintiff's wife said in evidence "she was on a good thing". 5 When the plaintiff and his wife married they decided that it was timely that they re-evaluate their respective careers. The plaintiff's wife was working as a property manager with a real estate agent in Double Bay. She decided to continue her career in real estate. However, together they decided to take the plaintiff's business to the next level. The plaintiff's wife was instrumental in achieving this goal as she helped him in preparation quotes for jobs with builders. They focussed their efforts towards obtaining work from builders who were involved in the construction of large developments. 6 In 1997 the plaintiff changed his business entity from trading under his own name to that of a corporate entity, namely Crown Tiling Pty Limited (Crown). The plaintiff was successful in being awarded 4 contracts with the second defendant. These contracts with the second defendant were to tile balconies for large developments of home units at Dulwich Hill and Wollstonecraft – see the photographs and plan in Ex L. The plaintiff supervised up to 10-15 employees on site as well as carrying out tiling work himself. He normally worked 5 days per week from 7.00 am to 4.30 or 5.00 pm each day. He enjoyed his work and was good at it. As the plaintiff's company was carrying out work at both the Dulwich Hill and Wollstonecraft sites he attended both sites to ensure that his subcontractors were carrying out the work properly. While performing a contract for Summit he was also undertaking the performance of a contract with John Westaway and Company (Westaway). The accident 7 On 1 April 1999 the plaintiff commenced work at the construction site at about 7am (t 6.44). With the assistance of Mr Pavloski (a labourer) the plaintiff loaded tiling materials on to one of the material hoists to transport the tiles to the second floor of the building under construction (t 9.2-10). This was the first load of the day. 8 The plaintiff walked up a set of stairs to the left of the hoist. He then walked along the scaffolding erected by the first defendant to the hoist (t 9.12-16). As the plaintiff approached the hoist to retrieve the tiling materials and before he grabbed the chain in front of the hoist, the plank that the plaintiff was standing on collapsed (t 9.19-26). The plaintiff did not do anything to cause the planks to fall. The plaintiff fell about three storeys (t 9.40-48) to the ground below. His back hit the planks and he landed straight on his stomach (t 9.50-53). 9 Mr Savo Pavloski, employed by Crown Tiling, gave evidence. Mr Pavloski's evidence corroborates the plaintiff's account of the accident. Mr Pavloski was the labourer assisting the plaintiff in loading tiles onto the hoist at ground level (t 29.1-31). While the plaintiff ascended the stairs to receive the tiling material, Mr Pavloski remained on the ground. As Mr Pavloski started walking up the stairs, he heard a noise and saw the plank fall to the floor (t 30.22-25). When Mr Pavloski reached the top of the stairs he looked down to the ground floor and saw the plaintiff laying down on his stomach underneath the hoist (t 30.27-32). On the day of the accident he took photographs of the scaffolding (photographs Exs G & J – two of these photographs are reproduced at the end of this judgment). Ex G clearly shows "Bell Scaffolding" imprinted on the planks. 10 Mr Barry Tozer, a consulting construction engineer with Tozer & Associates Pty Ltd provided a report dated 26 March 2002. It was Mr Tozer's opinion that the accident was most likely caused by movement of the platform brackets when the plaintiff stood on the cantilever platform as the two platform brackets were free to rotate. If they rotated in opposite directions, the space between them would have increased. The fixed length scaffold plank laid between them would then have lost support when the gap between them exceeded the length of the plank. The plank was not fixed to the platform brackets and relied on the horizontal ledge of the steel angle forming the transom of the bracket for support. The movement was greatest at the extreme end of the bracket remote from the standard. The plank most likely to be affected by this movement was the third (outside) plank. This was the plank that fell in the accident. 11 The defendants did not admit liability nor did they make any submissions in relation to this issue. In my view it was foreseeable that there was a real risk to the plaintiff and that he would fall and suffer injury while carrying out work on the platform where horizontal planks on the walkway of the scaffolding were not properly secured. It was reasonably foreseeable that the planks would move and collapse which would cause the plaintiff to fall to the ground and suffer injury. As a cheap and practical response to the risk, the first defendant should have ensured the planks were affixed securely on the platform by means of brackets. In my view the first defendant was negligent. 12 The second defendant was the head contractor who supervised the work of the scaffolders and who erected the defective scaffolding that caused this accident (see photograph Ex G at the end of this judgment). It is also the responsibility of the builder in charge of the site to provide safe scaffolding for the use of all persons working on the site. Likewise it was foreseeable that if scaffolding was not properly secured, the plaintiff could fall and injure himself. The second defendant failed to ensure that the scaffolding on site was safe and was thus negligent. Contributory negligence 13 In considering the question of apportionment, the court is required to reduce the damages recoverable "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". This inquiry is not concerned with the cause of the accident but with the cause of damage (see Froom v Butcher [1976] QB 286 at 292-293). Contributory negligence is measured by the failure of the plaintiff to take reasonable care for his own safety (see Gunning v Fellows (1997) 25 MVR 97 at 99). It is the degree of departure from the standard of care of the reasonable man (see Pennington v Norris (1956) 96 CLR 10 at 16). Therefore it is an objective test and not subjective but as applied to someone such as the plaintiff. The standard of care is to be measured against that of ordinary prudence (see Sungravure Pty Limited v Meani (1964) 110 CLR 24 at 36). 14 The defendant alleges contributory negligence including: firstly, failing to keep a proper lookout while on a building site; secondly, failing to take reasonable care for the plaintiff's own safety and thirdly, failing to ensure that the scaffolding was safe to take the plaintiff's weight prior to using it within the course of his duties. The plaintiff was entitled to expect that the scaffolding had been properly secured. He had no prior warning that the planks were unsafe. He did not do anything to cause the planks to fall. In these circumstances the plaintiff was not responsible for his injuries and it is not just and equitable to apportion any amount to the plaintiff for contributory negligence. Damages 15 The plaintiff was taken by ambulance to Royal Prince Alfred hospital where he remained for two weeks. During that time it was not known whether the plaintiff would be able to walk again. The plaintiff was on morphine. He was placed in an upper torso plaster jacket for about 6 months. At the beginning of that 6 month period the plaintiff could not do anything for himself. His wife could not manage the demands of her job and to care for the plaintiff. The plaintiff's wife described this period as being one of adjustment where she realised that she would have to take on the "traditional male role" in the relationship. She decided to leave her job in real estate and open a tile shop that catered for the architectural and boutique market. The business is Design Tiles Pty Limited and it trades at 247 Pacific Highway, Arncliffe. 16 The plaintiff's wife gave evidence that prior to the accident the plaintiff was happy and the life of the party. They went shopping, entertained a lot and were happy. The plaintiff's brother Mohamed Ibrahim also gave evidence that prior to the accident the plaintiff was a fit, active happy person who worked hard. After the accident the plaintiff's brother described the plaintiff as being moody and causing conflict with others, particularly the plaintiff's wife and himself. He did not observe the plaintiff and his wife arguing prior to the accident. The plaintiff's wife now describes her husband as a very depressed man who cannot look after himself (t 156.37). The plaintiff's wife gave evidence that after the accident he does not take pride in his appearance. He does not shave nor does he care what he wears. After the accident their sexual relationship has been doomed. In 2001 they attended marriage counselling on a number of occasions (Ex H). The plaintiff's wife says that she tries to remain positive and believes that the strength and existence of their marriage is based on unconditional love and friendship (t 158.12-15). The plaintiff has attempted suicide on a number of occasions. 17 Since the accident the plaintiff has experienced back pain every day. It never goes away. The source of the pain is located in his back at belt level and radiates down both his legs. He experiences headaches and neck pain each and every day. He takes Panadene Forte daily to manage the pain. His wife said that his complaints of back pain are daily and constant. He has difficulty sleeping and alternates between the bed and the couch. He has broken sleep. The plaintiff gave evidence that his condition has improved since the accident. He can walk (albeit with a limp at times) and his mobility and ability to lift and reach have improved. 18 After the accident, the plaintiff has been unable to work as a tiler. His lucrative business went into liquidation. He regarded himself as a hard worker. One of the plaintiff's former bosses and the supervisor of the Summit projects spoke highly of the plaintiff (their evidence is referred to later in this judgment). As from October 2002 the plaintiff has been paid $150.00 net per week by Design Tiles. From sometime in 2000 to the present the plaintiff attends the premises of Design Tiles each day with his wife. The plaintiff gave evidence that he can work 1 to 2 hours doing light duties such as answering the telephone, helping customers with their enquiries, using the forklift to unload boxes of tiles from the truck and undertake some basic paperwork. The unloading only takes about 10 minutes per day. The plaintiff's wife gave evidence that she is not happy with him serving customers because he does not look or talk in a manner that is architectural or fitting for a boutique. 19 For a few months in 2002 the plaintiff worked in the family pastry shop "Ibrahims Pastries" for about five hours per night, two nights per week from 5.30pm up to 10.00 or 11.00pm. The plaintiff's brother Mohamed gave evidence that he was not satisfied with the plaintiff's work because the plaintiff did not do the job properly. He was moody and customers complained about him. The plaintiff closed the shop early and did not mop the floor properly. The plaintiff earned $50.00 per week from this work, but not every week during those few months. In lieu of the $50.00 the plaintiff's brother paid telephone and electricity bills on behalf of the plaintiff. 20 On 23 March 2004 a valuer attended the premises of Design Tiles and informed the plaintiff's wife that the building is to be sold, probably to a developer. The plaintiff's wife says that she does not have the financial resources nor emotional energy to relocate the business. She would like to start a family. Thus there is some real doubt as to whether the plaintiff will be able continue with his employment with Design Tiles in the future. Medical reports 21 Drs Patrick, Barrett, Vijeyarasa, Zicat, Mahony and Cusi all agree firstly as to the injury the plaintiff suffered to his back; secondly, that his back condition is permanent; and thirdly, that he will not be able to return to work as a tiler nor any other job which involves heavy labour. As a result of the accident the plaintiff suffered a burst/crush fracture of the body of the third lumbar vertebra involving anterior and posterior body without retropulsion into the spinal canal. The doctors agree that the plaintiff will continue to suffer from ongoing symptoms namely back pain and headaches. They do not recommend the plaintiff undergo any further surgery. 22 There is a dispute as to what type of work the plaintiff is capable of performing post-accident. There are numerous videos showing the plaintiff working (these will be referred to in more detail later in this judgment). Both Dr Anderson and Dr Dinnen viewed some of the video evidence and made comment. Dr Anderson concluded, after viewing the video evidence and examination, that the plaintiff is fit to return to work in a managerial role such as opening up his own tile shop. Apparently, the plaintiff expressed his intention to Dr Anderson that he wanted to open a tile shop and so Dr Anderson concluded that the plaintiff would be fit to do this provided he was not involved in heavy carrying, lifting, bending or twisting. 23 It is also Dr Anderson's view that the plaintiff could continue to work in the tiling business in a more supervisory role which would include, detailed management such as travelling to and inspecting jobs, quoting, ordering tiles and ancillary equipment and supervising filing work. He could, according to Dr Anderson, organise employees or sub-contractors to carry out tiling tasks to the plaintiff's specifications, negotiate tiling work with private individuals, other contractors, builders and developers and advise clients as a consultant on the use of different tile products depending on the intended application, or work full time in a retial outlet or coffee shop. 24 Dr Zicat, an orthopaedic specialist (report 29 January 2004) stated that the plaintiff would best be advised to avoid any activity that required repetitive or prolonged periods of sitting, standing, bending, heavy lifting or heavy physical work. Likewise Dr Mahoney (report dated 22 March 2002) opined that in order to minimise the exacerbation of his back pain and headaches the plaintiff should restrict his future activities to those which do not involve significant bending and lifting. Dr Mahoney put a limitation on the number of hours that the plaintiff could work namely a maximum of 15-20 hours per week. According to Dr Zicat the plaintiff will have significant impairment in his work endurance as a result of his injuries and chronic headaches. 25 In his report of 8 May 2002, Dr Anthony Dinnen, a consultant psychiatrist stated that in addition to his physical disability, as a consequence of his injury the plaintiff has experienced subsequent psychosocial problems including fighting and arguing with his wife, keeping his feelings and worries to himself, insomnia and depressive thoughts. Since the accident the plaintiff has increased smoking cigarettes, has taken Zoloft on and off and has physically and emotionally lost his libido. Dr Dinnen concludes that as a consequence of the accident, the plaintiff is suffering from dysthymic (depressive) disorder. Dr Dinnen stated that this illness is likely to cause a degree of disability in its own right and may well lead to difficulties in the plaintiff's social life, adaption to work and future recovery. 26 Dr Dinnen attended court for about one hour when a video was shown. In a subsequent report (dated 19 March 2004) he stated that there was nothing in the video which would cause him to modify his opinion put forward in his earlier reports, namely, that the plaintiff is chronically depressed and coping with difficulty. The defendant's insurer's psychological report by Chris Allen (dated 1 March 2004, Ex T) paints much the same picture as Dr Dinnen, albeit perhaps a bit bleaker. In that report the plaintiff was assessed as being a moderate suicide risk and reference was made to the plaintiff's alcohol consumption being a problem. 27 Dr Dinnen gave evidence that it is important in terms of helping him maintain some degree of activity and to cause him to be more positive and optimistic about the future for the plaintiff to engage in work, even part time work of a sedentary or unskilled nature. In cross examination, Dr Dinnen stated that if the plaintiff has to work in a lesser capacity and returned to the work he was doing in his tiling business, there is a real possibility that the plaintiff will continue to suffer ongoing depression. However this depression is not severe enough to stop him from working in that lesser capacity. Video evidence 28 On 23 and 24 September 2001, the plaintiff was shown working in his brother's shop, which is located across the road from Design Tiles. His brother's shop sells pastries, videos and DVDs. The plaintiff was shown serving customers in the shop. He retrieved pastries from the refrigerated shelves both from beneath the counter or from the larger fridge along the wall of the shop by means of tongs and a spatula. The plaintiff was able to bend from the waist from time to time. He was able to move his neck freely from side to side. He was also able to reach up with his arms higher than his head to access the upper shelves in the shop. He was shown walking and running across the Pacific Highway. I did observe that on one occasion he displayed a slight limp when walking. He was able to put the pastries in boxes or paper bags, make coffee and ring up the sales on the cash register and attend to payment. The plaintiff was shown mopping the floor with a mop and bucket. The plaintiff is capable of mopping floors, cleaning benchtops, wiping down chairs and tables. On closing he was able to lift the sandwich board advertising the business from its location outside on the footpath and place it inside the shop. 29 On 4 October 2001 the plaintiff was shown working at his brother's pastry shop from 4.30 pm until 10.30 pm. On 5 October 2001 the plaintiff was shown commencing work at his brother's pastry shop at 5.00 pm and finishing at about 11.50 pm. He carried out the same or similar duties described above. 30 On 12, 13, 14 February 2004 and 2 March 2004 the plaintiff was shown attending the premises of Design Tiles. On 13 February 2004 he was shown for a short while driving a forklift. On 2 March 2004 the plaintiff together with his brother were shown assisting a customer to put a mirror with dimensions of 1 to 1.5 metres by 450 millimetres into the back of a station wagon. At times on the video the plaintiff was show laughing and smiling but when asked about this he maintained that he always tries to do things but his lower back is in pain. At other times his facial expression was quite bland. The videos did not show the plaintiff lifting heavy items. At the times the plaintiff was working at the business it was not particularly busy. The video evidence was not at odds with the plaintiff's evidence except in so far as the plaintiff can work longer than 1 to 2 hours at any one time. I accept that the plaintiff can no longer run his own business where he supervises and performs tiling work. He has lost the satisfaction of running his own lucrative business. He viewed that as hard work and does not view the tasks he performed at Ibrahims Pastries or Design Tiles as real work. General damages 31 Damages are assessed at common law at large. The plaintiff submitted that an appropriate amount for non economic loss was $150,000.00. The defendant submitted that an appropriate amount was between the ranges of $85,000.00 to $95,000.00. The plaintiff is a relatively young man. After I have taken all the matters I have referred to earlier in this judgment, I assess general damages at $120,000.00. Past general damages are $60,000.00. Interest on past general damages is calculated at $60,000.00 x 2% for 5 years which totals $6,000.00. Out of pocket expenses 32 The out of pocket expenses have been agreed at $46,817.00. Past out of pocket expenses and interest 33 The plaintiff claims interest on the chemist component of the past out of pocket expenses at $12.00 per week x 256 = $3,072.00. Interest is calculated at 7% of $3,072.00 for 5 years which equates to $1,075.20. I allow this amount. Fox v Wood 34 The Fox v Wood component has not been agreed. Past and future economic loss 35 The plaintiff claims past economic loss at $799,946.00 which is based on a weekly net income of $3,194.00 less $27,300.00 for income earned from employment with his wife's business and the pastry shop. The defendants have calculated past economic loss at $177,437.00. This sum is comprised of $2,000.00 gross per week ($1,283.00 nett) from the date of the accident to the end of 1999, ie. 39 weeks x 1283 (multiplier) = $50,037.00; from 2000 to 2002 (104 weeks) at $850.00 per week equates to $88,400.00 and from 2003 to date (72 weeks) at $750.00 = $54,000.00. 36 The plaintiff claims future economic loss on two bases, firstly at the rate of $4,200.00 gross per week less residual earning capacity of $400.00 per week nett (which equates to $550.00 gross) x 1059.2 (less 15%) which totals $3,421,216.00 or alternatively if the plaintiff's income is calculated at $3,194.00 less $400.00 nett = $2,794.00 x 1059.2 (less 15%) which equates to $2,515,494.10. The defendant calculated future economic loss at $650.00 per week at multiplier 1059.2 (on 3% tables) which equates to $585,208.00. 37 The plaintiff's income for the years 1998 and 1999 is not consistent with those of prior years. For the 1998 and 1999 financial years, the plaintiff was an employee of his own company, Crown Tiling Pty Limited. In prior years he worked as a sole trader. Tax returns show the following taxable income up to the date of accident on 1 April 1999 and are as follows: Ibrahim Crowning Tiling P/L 1995 $ 30,853 n/a 1996 $ 36,294 n/a 1997 $ 46,140 n/a 1998 $ 55,548 wage ($16,092) loss 1999 $228,020 wage ($ 253) loss 38 The plaintiff's attention to detail in bookkeeping for the company was far from ideal. The plaintiff had been conducting his business in relation to large developments for about a year when the accident occurred. Hence, it is very difficult to assess how profitable his business was in 1999 and how well it would have performed in the future. The business had certainly increased in volume and income. 39 A summary of clients' invoices for the taxable year 1998-1999 for Crown Tiling reveal that the business rendered invoices totalling $1,169,126.00 (Ex 7). The invoices related mainly to work carried out for Summit. There is one invoice rendered to J A Westaway in the sum of $75,000.00. The difficulties in ascertaining how the plaintiff's business would have performed are attributable to the fact that there is no real breakdown between the cost of materials supplied and the amount that was paid by the company to employees (including the plaintiff) and subcontractors. The primary service for this information comes from the cheque butts which are impressive. Even though the tax return reveals that the plaintiff earned a wage of $228,020.00 during that year neither the company nor the plaintiff paid income tax so that figure is not an accurate one. Some of the income attributed to him may have, in fact, been paid to suppliers or subcontractors. In my view in these circumstances, to adopt the approach of using 1999 tax return and notice of assessment as a base would be speculative. 40 Mr Colban a construction manager at Tara Constructions gave evidence. He originally worked as a builder. He has been in the building trade for 25 years and worked with Summit for 9½ years. Mr Colban was the person responsible for overseeing on the plaintiff's contractual performance. Mr Colban spoke highly of the plaintiff and described the quality of his work as being very good and above average. Mr Colban viewed the plaintiff as being an efficient worker. 41 In 1999 Summit had 4 to 5 projects underway. The plaintiff's company worked at two of those sites. Had the plaintiff not been injured, Mr Colban would have given the plaintiff's company more work, but Summit had financial problems which caused it to go into liquidation at the end of 1999. This, in turn, together with the plaintiff's injuries caused the plaintiff's business to cease operation. However, it is my view that had the plaintiff not been injured even when Summit was no longer in a position to officer him work, he would have been successful in obtaining similar contracts from other developers. 42 Mr Francesco Peronaci who is a company director of Ace Contractors Pty Limited (Ace) gave evidence. Ace employed the plaintiff when he was an apprentice. Mr Peronaci described the plaintiff's abilities as a tiler as being above average. He said that tilers earn between $1,800 to $2,200 gross per week. The benchmark that companies use when quoting for jobs is that they calculate the price on the basis that they will make between 30% to 40% profit. From the profit expenses such as telephone, wages, rent, postage and other such usual expenses incurred in running a business are deducted. The overall profit after tax should be 15% of the price quoted for the job. According to Mr Colban and Mr Peronaci, there is plenty of work available for tilers of the plaintiff's calibre. 43 The plaintiff has been unable to return to his work running his tiling company since the accident. As previously stated the medical opinion is that he is permanently incapacitated and prevented from returning to his pre-injury employment. He is permanently unfit for physical work involving heavy lifting or carrying, frequent bending, prolonged stooping or working in awkward positions. 44 Doing the best I can, I assess the plaintiff's loss of earning at $2,200.00 gross per week for the period from the date of the accident to 31 October 1992. This is at the highest end of the range of the earnings of tiling subcontractors. It is my view that the plaintiff would have continued to work for his own company and would have ensured that it was financially more profitable than being employed as a tiler or as subcontractor using only his own personal labour. He would have continued to have taken on jobs that required him to be responsible for up to 10-15 other workers, so I have used the upper end of range as representing the amount the plaintiff would have earned if he had not had the accident. Overall in the future, the plaintiff's business would have remained geared towards large development sites and most likely would have remained profitable. The plaintiff would have continued to be supported by his wife in operating his business at this level. However, the level of activity in this type of building work is subject to market fluctuations. Even in the periods of market downturn, there would always be work for a tiler of the plaintiff calibre on a subcontracting basis. Thus I have calculated the wages for 52 weeks per year as opposed to 48 weeks per year to reflect his share of the profit that his business has foregone at the aforesaid rate of $2,200.00 ($1,396.84 nett). Past economic loss 45 I accept that the plaintiff was unfit to return to any form of work until October 2002. Thus past economic loss for the period 1 April 1999 to 31 October 2002 is calculated at 182 weeks at $1,396.84 which totals $254,224.88. No amount is to be deducted from this amount as the plaintiff did not earn any income during this period. Residual earning capacity 46 The plaintiff currently helps his wife in her business. Since October 2002, Design Tiles has been paying the plaintiff $150.00 nett per week (t 158.66). The plaintiff's wife says that that amount is all she can afford and basically the plaintiff really does not do much except bits and pieces of running around and she gives him things to do. She does not need him there as she has other staff but wanted to give him something to do. The plaintiff answers telephones, gets the lunches, does the banking, does light sales work and gives advice. Sometimes when his wife and other employees are busy, he will serve customers or will take a light box of tiles to a car. Sometimes he drives a forklift for 5 to 10 minutes per day when he unloads the delivery of tiles from the truck and puts them in storage. He used to order tiles but his wife was not happy with his work. He does not do the paperwork because he is not confident to do so and his wife does not want him to. The plaintiff gave evidence that he can work for 1 to 2 hours at a time. However, the video evidence shows that he is capable of performing light duties for a longer period although he did not appear to be an enthusiastic worker, which is at odds with the evidence given by Mr Colban and Mr Peronaci. On the second occasion, he was filmed working for about 6 hours in the pastry shop. Both Drs Zicat and Mahoney refer to the plaintiff as having significant impairment in his work endurance as a result of his back injury and headaches. The plaintiff's brother and his wife have also given evidence that the plaintiff 's work capacity and endurance is below average. I would add that the plaintiff does not appear to be motivated while at work. His explanation is that he tries but he is always in pain. Part of the explanation may also be attributable to what he regards as the inferior type of work he can perform. This may well be due to his psychiatric state as described by Dr Dinnen. 47 Rehabilitation case management in its report dated 26 September 2001 (part of Ex 12) reviewed what it considered were the vocational options available to the plaintiff. They included general sales representative, cashier, customer service or call centre positions, quoting and estimating for tiling organisations, light delivery, telephone collections work. These salaries for fulltime work range from $452.60 per week to $1,000.00 per week. The plaintiff is capable of carrying out more work than he has been doing, but he would need to obtain employment that does not require him to continually carry out duties which involve physical exertion on a fulltime basis. It is my view that the plaintiff's earning capacity from October 2002 to date and for the future should be assessed at $450.00 nett per week. From 31 October 2002 to 14 May 2004 is 80 weeks at $946.84 (i.e. $1,396.84 less $450.00), which totals $75,747.20. The total for past economic loss is $254,224.88 + $75,747.20 = $329,972.08. Interest on past economic loss is calculated at 7% for 5 years on $329,972.08 = $115,490.22. Past superannuation loss 48 At the time of the accident, the plaintiff's company was not contributing to his superannuation surcharge. Nor was the plaintiff making any contributions towards his superannuation. Thus the defendant has not made any allowance for this component. The plaintiff calculated past superannuation loss at 7% of nett earnings. 49 Neither the plaintiff nor his company were not making superannuation contributions at the time of his accident. At some later stage he would have received advice from his accountant that the company was legally obliged to do so. The plaintiff's company would have made these deductions and have had to make good for the payments it has overlooked. Thus I will allow past superannuation loss at 7% of $329,972.08 which equates to $23,098.05. Future economic loss 50 For the reasons given earlier, future economic loss is calculated at $946.84 nett per week x 1059.2 = $1,002,892.90 (multiplier for 31 years on 3% tables) less 15% ($150,433.93) for vicissitudes of life. He would have worked to the normal retirement age of 65 years, i.e., 31 years. The total amount assessed for future economic loss is $852,458.98 rounded up to $852,459.00. Future superannuation loss 51 The plaintiff claims future superannuation at 9% of his nett wage. 9% of $852,459.00 is $76,721.31. I allow this sum. Past domestic assistance 52 The plaintiff claimed domestic assistance both past and future at 12 hours per week at $20.00 per hour. The defendant allowed 2 hours per day for a 7 day week at $16.50 per hour for 6 months which totals $6,006.00. The defendant has not made any allowance for future domestic care. 53 The principles with regard to home care services were recently restated by the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319. To determine the applicable amount to be awarded for home care services it is necessary to identify which services the plaintiff would reasonably need, as a result of the defendants' wrong. Or expressed another way, the plaintiff is to be compensated for the loss of the capacity to look after themselves caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327. 54 As previously stated, prior to the accident the plaintiff would arrive home from work, earlier than his wife, do the housework and prepare the evening meal. He did the washing, ironing, vacuuming, mopping and cleaning. He did the gardening and washed the car. The plaintiff's wife estimated that he spent between 10 to 15 hours each week on household chores (t 156). As they now live in a unit, there is no gardening but there is car washing and maintenance to be done (t 156.48). The plaintiff stated that he was not capable of doing the cooking, vacuuming and dusting at home and has not done it since the accident due to the pain in his back. He has not carried out any of these tasks since the accident. 55 As previously stated after the accident, the plaintiff was in a body cast for six months. The plaintiff's wife gave up working to look after him. The plaintiff claims 12 hours per week to date at $20.00 per hour. The defendant allows 2 hours per day for 6 months at $16.50 per hour which equates to $6,006.00. For this six month period I accept that when the plaintiff first came out of hospital, he was almost totally reliant on his wife for care with showering, dressing, cooking and the like. After two months or so he became less reliant upon her and therefore I calculate the plaintiff past domestic loss for this six month period on an average of 3 hours per day at $16.50 per hour. This equates to the sum of $9,009.00 which I allow. 56 That leaves the allowance that should be made for past domestic assistance (from 1 October 1999 to date) and then an allowance, if any, for the future. Dr Zicat provides some support for the plaintiff's claim for domestic assistance. In this regard, in his report dated 29 January 2004 he states that the plaintiff has difficulty with many of his usual activities as well as difficulty with showering and drying. According to Dr Zicat, he has difficulty donning and doffing his shoes and socks and he is unable to do any cooking, cleaning or vacuuming. He is restricted to driving less than 40 minutes at a time. He has difficulty carrying any heavy bags when shopping. 57 I accept that had the plaintiff not been injured in the accident he would have continued to carry out household chores. He would have also performed maintenance such as painting the inside of the unit. Despite what Dr Zicat says I do not think, after viewing the video evidence, that household tasks would be too difficult for the plaintiff to perform. The plaintiff was shown mopping the floor on video. In my view the plaintiff is physically capable of performing cooking, washing, mopping, dusting and ironing unless there is a psychological and psychiatric reason proffered for the plaintiff not being able to do so. Neither Drs Dinnen nor Anderson stated that the plaintiff was incapable of performing household tasks. 58 The plaintiff and his wife are considering having children. They may not always reside in a unit and I accept that the plaintiff cannot undertake heavy physical work that he would have to be carried out if the accident had not occurred. These tasks include gardening, lawn mowing, painting which will require standing on ladders, household repairs and the installation tiles in the kitchen and bathroom from time to time. In accordance with Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 and doing the best I can, I allow 3 hours per month at $20.00 per hour (i.e. $14.00 per week). For past domestic assistance from 1 October 1999 to date is 236 weeks at $14.00 per week which equates to $3,304.00. The total for past domestic assistance is $9,009.00 + $3,304.00 = $12,313.00. Interest on past domestic assistance at 7% for 5 years is $861.91 x 5 = $4,309.55. The total for past domestic assistance and interest totals $16,622.55. For the future I allow 3 hours per month at $20.00, i.e. $14.00 per week for 44.78 years (x multiplier 1,298.5), which totals $18,179.00. Future medical and pharmaceutical expenses 59 The plaintiff gave evidence that he spends $12.00 per week at the chemist just on Panadene Forte. I allow this amount. $12.00 for 44.7 years x multiplier 1296 = $15,552.00. From time to time the plaintiff has taken medication for depression and to allow for this possibility in accordance with Malec I allow the sum of $2,000.00. 60 In his report dated 22 March 2002, Dr Mahoney recommended that if the plaintiff has further symptoms and further treatment in the form of intermittent physiotherapy and hydrotherapy as indicated, he would advise him to wear a lumbar support intermittently. The costs are assessed by Dr Mahoney as being: physiotherapy $3,000.00, hydrotherapy $3,000.00, lumbar support and replacement lumbar support $3,500.00 and general practitioner specialist consultations $3,000.00. This totals $12,500.00. The plaintiff has never been pain free with his back condition. He is a relatively young man. It is my view that it is likely he will avail himself of these treatments and support in the future. He may not attend hydrotherapy, but in lieu, there may be medical advances in pain management so I allow this sum. 61 It is the opinion of Dr Bernard Zicat that as the plaintiff's disability will be permanent, there is no prospect of any particular treatment improving his condition and as a result, future treatment will be limited to diminishing the pain experienced by the plaintiff. However, Dr Dinnen and Chris Allan psychologist, recommended that the plaintiff undergo counselling and psychiatric management. Mr Allan recommended that the plaintiff undergo psychological treatment of 12 to 15 sessions and specified the specific treatment he thought was appropriate. As the plaintiff is a young man who suffers from depression, it is my view that an allowance should be made for consultations. I allow the sum of $5,000.00. The amount for future medical and pharmaceutical expenses totals $15,552.00 + $2,000.00 + $12,500.00 + 5,000.00 = $35,052.00. Equipment 62 The plaintiff relied on the RCM report dated 16 April 2002 in which the occupational therapist recommended that a chair ($386.00), footrest ($76.00) and chair mat ($109.00) be provided. The defendant made no such allowance. It is my view that provisions of these items to assist with the plaintiff's back problems are necessary and reasonable. I allow the modest sum of $571.00 for these items. 63 I propose to enter judgment that the defendants pay to the plaintiff the sum of $1,642.57.51 once the parties check my arithmetic calculations for damages. 64 Costs are discretionary. Costs normally follow the event. The defendants are to pay the plaintiff's costs are agreed or assessed. JUDGMENT (1) The defendants are to pay the plaintiff the sum of $1,642,057.51 for damages. (2) Subject to previous costs orders in favour of the defendants, the defendants are to pay the plaintiff's costs as agreed or assessed. (3) The Fox v Wood component is reserved. (4) The Fox v Wood component is stood over to Tuesday, 18 May 2004 at 10.00 am for argument. SCHEDULE $ General damages 120,000.00 Interest on past general damages 6,000.00 Out of pocket expenses 46,817.00 Past out of pocket expenses & interest 1,075.20 Past Economic Loss 329,972.08 Interest on Past Economic Loss 115,490.22 Past Superannuation Loss 23,098.05 Future Economic Loss 852,459.00 Future Superannuation Loss 76,721.31 Past Domestic Assistance & Interest 16,622.55 Future Domestic Assistance 18,179.00 Future Pharmaceutical & Medical Treatment 35,052.00 Equipment 571.00 __________ Total $ 1,642,057.51 Exhibit G Exhibit J ********** Last Modified: 05/17/2004 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.