New South Wales Supreme Court CITATION : Adrian Ware v Integral Energy [2003] NSWSC 351 HEARING DATE(S) : 25/03/03,26/03/03,27/03/03 JUDGMENT DATE : 30 April 2003 JUDGMENT OF : Cripps AJ DECISION : See para 48 CATCHWORDS : Damages - most extreme case - severe electrical burns - gross deformities - amputation - cost of prostheses PARTIES : Adrian Ware - Plaintiff Integral Energy - Defendant FILE NUMBER(S) : SC 20481/00 COUNSEL : Plaintiff - P. Blacket SC, W.D.H. Walsh Defendant - R. Sheldon SOLICITORS : Plaintiff - Turner Freeman Solicitors Defendant - Leigh Virtue & Associates IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Cripps AJ 30th April 2003 20481/00 - Adrian Ware v Integral Energy JUDGMENT 1 HIS HONOUR: On 26 March 1999 the plaintiff was electrocuted as a result of the admitted negligence of the defendant. The matter before the Court is for an assessment of damages only. 2 The plaintiff was badly injured in the accident. He suffered severe electrical burns to his lower right arm, left hand, chest and shoulders and right leg. 3 Initially he was treated at the Intensive Care Unit at Liverpool Hospital. Later he was transferred to the Burns Unit at Concord Hospital where he came under the care of Dr Haertsch a plastic surgeon and Dr Masson a hand surgeon. 4 Between 26 March 1999 and 20 April 1999 he underwent seven operations. On 9 April 1999 his right arm below the elbow and his left finger were amputated. 5 The plaintiff has been left with gross deformities of his neck, shoulder and upper back on the left side and his right thigh and calf. He has two large scars adjacent to each other on the left lateral axilla and the left upper medial arm. 6 The scarring on the left hand and the left shoulder and neck has left the plaintiff with significant disabilities. In addition he has lost right leg medial quadriceps and has significant problems with his right knee which will, in the future, probably develop degenerative changes due to lack of quadriceps. His inability to use his right leg will, in all probability, lead to future problems with his spine. As a result of the electric shock he suffered severe cardiac dysfunction leading to hypertension which will continue in the future and for which he will need treatment. 7 The plaintiff was right handed. He has lost his right hand and now wears a prosthesis. His left hand functions badly due to the loss of his ring finger and extensive scaring. It is extremely difficult for the plaintiff to undertake ordinary day-to-day living activities. He is, not unnaturally, concerned about his uncovered appearance. Although he has had one child since the accident and hopes to have another in the near future he has difficulty with sexual intercourse. The massive scaring has adversely affected his body's capacity to control temperature. He continues to suffer a great deal of pain including phantom pain in his right arm and his Myoelectric prosthesis is sensitive to electro magnetic fields. 8 It is unnecessary to list all the disabilities suffered by the plaintiff. As will be seen the defendant's medical advisers do not really dispute either the injuries suffered by the plaintiff or his present disabilities. For example it is not disputed that the plaintiff can no longer drive a manual motor vehicle and he is entitled to be compensated for the additional costs likely to be incurred by him as a result of the need for a larger modified car. It does not dispute he is entitled to compensation for additional expense he may incur in the future for modifications to his home and the acquisition of a lap top computer. Presently the plaintiff is investigating voice recognition software and other advances in technology, which would not have been acquired by him but for his accident. He needs assistance in carrying out day-to-day activities. On this issue the only dispute between the parties is how much assistance is needed by reason of his injuries. 9 The plaintiff returned to light duties on 17 January 2000. He was unable to carry out his pre-injury work and the defendant created a position especially for him as Assistant Project Manager. He has continued in that work since that time although he has had time off for further operations. He is unable properly to undertake the work of Project Manager because of his disabilities. For example it is often necessary for him to have an assistant with him when undertaking field work which, had he not been injured, would not have been necessary. He will never return to his pre injury occupation as an electrician. Should he lose his present position he will be significantly disadvantaged on the open labour market. 10 The plaintiff was born on 30 June 1977. He was twenty-three when he was injured. At the date of trial he has a life expectancy of 53.7 years and, if he had worked until he was sixty-five a working life of 43 years. When calculating the present value of compensation for future losses and future expenses I have reduced the plaintiff's claim to a weekly sum and have applied the 5 percent table for the appropriate multiplier. That is for 53.7 years the multiplier is 990.80 and for 43 years it is 902. 11 Before his accident the plaintiff had completed a four year course and had qualified as an electrical fitter. Prior to that he had undertaken a typing course at TAFE Wollongong and had passed exams in electronics technology. He had almost completed his Diploma of Engineering. 12 From time to time his performance as an electrical fitter was the subject of assessment by his employer and he was described by his supervisor as having an excellent attitude to work. It was said he was; "A good worker of above average ability. Clear and self thinker. Gets on with co-workers. We need people like Adrian". 13 Before his accident the plaintiff was fit and healthy. On 7 March 1998 he married his childhood sweetheart. They are happily married and since the accident his wife has had a baby. The plaintiff and his wife have both expressed a desire to have a second child in the near future. The plaintiff helped his wife around the house and enjoyed travelling with her. He participated in a number of sports including golf, surfing and bungy jumping. These, with the possible exception of golf, are now beyond him. He plays golf with a prosthesis but is not able to play to the same standard as previously. The plaintiff was a competent organ player although the had not entered musical competitions for some years prior to his accident. Before the accident the plaintiff serviced his own car and his wife's car. He did all the building work associated with the renovation of his home at 10 Balfour Street, Fairy Meadow. Now he can do none of these things. 14 Since the accident the plaintiff and his wife have demolished the house at 10 Balfour Street, Fairy Meadow and have built another single level house on the site. The house was designed to meet the needs of the plaintiff so far as they can be met. Although the plaintiff can perform some functions for his infant child there are many he cannot. For example changing nappies and bathing the child is extremely difficult. Moreover as his child (or children) get older and more active the plaintiff will have increasing difficulty caring for them. 15 There is a difference of opinion between the plaintiff's treating doctor and a West Australian medical expert to whom the plaintiff was sent for assessment concerning future treatment. Dr Haertsch, his treating doctor, has suggested operations to improve the contour, texture and colour of the scaring of the shoulder and neck. Because of the severity of the scaring he thought the treatment would involve about six operations at a cost, in all, of approximately $60,000. Six surgical procedures will be necessary because of the enormity of the task. Even so the procedures will be accompanied by certain risks such as sepsis, which will be higher than normal because the surgeon will not be dealing with a clean surgical wound. Overall the six operations will result in the plaintiff being away from work for a period of about six months during which time he would require increased home care. 16 Dr Wood a plastic surgeon in Western Australia has expressed an opinion that the plaintiff could benefit from four operations referred to as "skin expanders" to improve the plaintiff's neck and shoulder and, as well, his right thigh and calf. Dr Haertsch has advised against any surgical procedure to the thigh and calf. He thought that to have any prospect of success the plaintiff would need to undergo a number of operations and there could be no guarantee of success. As he put it: "He would have to have a significant number of operations over a long period of time and I thought that weighing the risks against the benefits I would advise him against it, but it would not be an unreasonable thing for him to say 'I want to go ahead'". 17 In evidence the plaintiff expressed a preference to undergo the operative treatment referred to by Dr Wood because he believed it would be "less intrusive". The cost of treatment in Western Australia would, according to Dr Wood, be significantly less than the cost of the same treatment in New South Wales according to Dr Haertsch. Dr Haertsch had given evidence and explained why it is that he recommended against any cosmetic surgery to the plaintiff's right thigh and calf. Dr Wood did not give evidence. Notwithstanding the plaintiff's tentative preference I doubt whether the plaintiff will undergo the surgical procedures recommended by Dr Wood bearing in mind the extremely painful and uncertain outcome foreseen by Dr Haertsch. If the plaintiff undergoes the surgical procedures recommended by Dr Haertsch he will need full-time domestic help while recovering from surgery due to the loss of his right arm below the elbow and the problems associated with his left arm and hand and right leg. 18 As I have said there is no real dispute between the parties concerning the gravity of the injury suffered by the plaintiff and the disabilities flowing there from. There are, however, differences concerning: 1. The amount of domestic assistance the plaintiff has needed to date of trial and will need in the future by reason of his disabilities. 2. The expense of maintaining and replacing a functional prosthesis for his right arm. 3. Modifications needed to be made to his home. 4. Future economic loss. 19 The defendant does not deny the plaintiff is entitled to compensation in respect of the gratuitous services he has received from members of his family from the date of the accident to January 2000 when he returned to light duties and it concedes the plaintiff was entitled to an amount of $33,565. But thereafter the defendant and the plaintiff part company concerning the plaintiff's needs. 20 The plaintiff has claimed an average 20 hours per week from 17 January 2000 until the date of trial being a period of approximately 175 weeks at an hourly rate of $17.58 per hour. Thereafter three scenarios are advanced on his behalf. The first two being 8 hours and 16 hours per week derived from reports of Dr Buckley and Ms Heather Tchan respectively. The third is for 35 hours per week and derives from a report of Dr Lewis-Enright. 21 As I have said the defendant acknowledges liability for compensation for gratuitous services rendered in the past and needed to be rendered in the future. However (and leaving to one side the need for services until he returned to work) the defendant maintains that he is entitled to 20 hours from 17 January 2000 to 27 April 2000, 15 hours from 27 April 2000 to 18 August 2000 and 10 hours from 8 August 2000 to 27 March 2003 and thereafter 10 hours per week at the rate of $17.58 per hour. The plaintiff claims 20 hours from 20 January 2000 until the hearing date. It is always difficult for a Court to be called upon to assess the value (even though the hourly rate is agreed as in this case) of the provision of past care. Bearing in mind the very serious injuries and disabilities of the plaintiff doing the best I can I accept that the plaintiff has established an entitlement of 15 hours per week from January 2000 to March 2003 amounting in all to $46,147. 22 So far as the future is concerned the plaintiff has presented three scenarios ranging from $198,160 to $866,950 depending upon whether I consider the plaintiff will have a need of 8,16 or 35 hours per week. I record that, as with the past care, generally speaking I accept the evidence of Dr Buckley and Ms Tchan as providing assessment of the plaintiff's future needs. I must record that I am less impressed with the evidence of Dr Lewis-Enright whose assessment and evidence teetered, in my opinion, on the edge of advocacy. But doing the best I can and conscious that the plaintiff is not only now seriously disabled but that his disablement will not improve in the future I would allow him compensation calculated by reference to the need for 13 hours per week which, on the agreed basis of calculation (for his life expectancy), amounts to $322,010. 23 The plaintiff can no longer care for his child as he would have been able to do had he not had his accident. As his child (children) get older his problems will increase. The plaintiff has claimed a need for 14 hours per week with respect to his child and an allowance calculated by reference to a further need for 14 hours per week with respect to the second child which he hopes to have - deferred for two years. The defendant concedes the plaintiff is entitled to compensation for the cost of employing someone to undertake care he cannot provide himself. It submits, however, that future care should be assessed at approximately 7 hours per week for a period of three years for his child and an allowance calculated by reference to 5 hours per week (deferred) for his second child. Doing the best I can I award the plaintiff compensation based on an established need of 9 hours per week for four years with respect to his child. The plaintiff and his wife have said they wish to have a second child. I have to take into account there might not be a second child but probably there will. Bearing in mind that caring for two children is not, ordinarily speaking, twice as much trouble as caring for one child (and of course assuming that a second child will arrive) I accept an established need of 5 hours per week for 5 years (deferred for 2 years) and applying the agreed rate and multiplier. With respect to the first child accordingly I award the plaintiff the sum of $57,834 and with respect to the second $35,617. 24 I record that in arriving at these estimates and doing the best I can I have included a period of approximately six months of care the plaintiff will need by reason of him undergoing the operations referred to by Dr Haertsch. 25 Future out of pocket expenses claimed by the plaintiff include the cost of replacing and maintaining a functional prosthesis some of which are agreed and some disputed. The parties would appear to agree (or at least the defendant does not dispute) that the plaintiff is entitled to $53,403 for future general, medical, pharmaceutical and physiotherapy as well as for the possibility of psychological and marriage counselling. 26 In my opinion the plaintiff is also entitled to an allowance to accommodate the cost of avoiding skin cancer because of the damage skin tissue and the possibility of some breakdown. The defendant has made no submissions concerning this matter but doing the best I can I would allow the sum of $12,000. I have not made an allowance for treatment by Dr Wood because, as will be seen, I have included in this award the cost of the six surgical procedures recommended by Dr Haertsch. If the plaintiff has the operation in the relatively near future (and I infer more probably than not he will) the cost will be about $60,000. As I have said during the periods of operations and recuperation the plaintiff will lose wages and need more attentive care. I have included these last two matters in my estimates of loss of wages and future Griffiths v Kerkemeyer care. 27 In my opinion the plaintiff is entitled to compensation for check ups by cardiologists and also he will be required to undertake renal function monitoring tests. The plaintiff estimates the cost of this to be $19,002 for each based on a yearly cost of $1,000 for 53 years and the application of the multiplier of 990.80. Finally the plaintiff is entitled to the sum of $753 for domestic appliances to assist him at home. 28 The plaintiff has claimed the sum of $1,265,944 for the cost of repair, maintenance and replacement of his prostheses and sundry items associated therewith. This is the largest single claim of the plaintiff and the largest disparity between what the plaintiff claims and what the defendant submits it is obliged to pay. The defendant submits it is required to pay $408,294 only. 29 The plaintiff has three prostheses. Replacement and maintenance is expensive and, as time goes on, will become more expensive due to improved technology. Many of the expenses claimed by the plaintiff are agreed by the defendant or, at least, are so close to agreement as to give me confidence that the disputes concern a few items only. The plaintiff has calculated the expenditure on a yearly basis, reduced to a weekly expense and then applied the agreed multiplier for the life expectancy of the plaintiff. I record that for the sum of $18,184 there is no significant difference in the submissions by the defendant and the plaintiff. That is to say the parties are virtually in agreement so far as the future cost of maintenance ($3,564) fleecenette socks ($684), cleaning fluid ($400), icros liners ($1,484). Replacement of three below elbow Myoelectric prosthesis every five years ($5,653), "living skin" (at an initial cost of $24,500 lasting approximately 5 years ($5,000 per annum) and a Munster socket ($1,400). 30 The major areas of dispute concern the future cost of lithium batteries, socket replacement for each prosthesis every eighteen months at a cost of $7,200 each and the acquisition of a golf attachment for which the plaintiff claims $1,878 and the defendant $375). The total of the amount conceded by the plaintiff is $7,089 and the amount claimed by the plaintiff is $27,727. 31 I record that I do not allow the plaintiff the sum of $5,742 for the cost of lithium batteries. It would seem that the plaintiff needs three prostheses but in all requires only two batteries each year to maintain them. Accordingly I allow an amount of $1,914 being the yearly cost of the lithium batteries. 32 Each prosthesis costs $7,200 and each, as I find would need to be replaced approximately every 18 months. Accordingly I do not allow the plaintiff the sum of $21,600 per annum for replacement sockets as claimed by the plaintiff nor do I fix a sum of $4,800 as submitted by the defendant. I award a sum of $14,200 for the yearly cost of replacement of prostheses. 33 It follows that I have allowed as a yearly amount of $35,290 being the $18,184 referred to above and the $17,140 being the cost of the disputed items. It follows from my calculation and applying the appropriate multiplier to the plaintiff's life expectancy that he is entitled to a sum of $671,762. Modification To His Home . 34 The plaintiff lists under six separate headings the need for modification to his home consequent upon his injuries. 35 1. He claims $42,600 for the cost of making provision in the future for accommodation for a live in carer if for some reason or other the plaintiff and his wife are no longer married. The defendant does not dispute that the plaintiff is entitled to an amount in respect to this possible future need but concedes no more than $20,000. There is no convincing evidence before me that the plaintiff will be divorced in the future. I can do nothing but speculate as to whether he may lose his wife for any other reason. However doing the best I can I make an allowance of $25,000. 36 2. The plaintiff has claimed for the modification of taps and door handles ($2,940) and for the removal of a trip hazard ($1,000). It is not really disputed that this is needed. The defendant, I think by mistake, places a figure of $8,500 next to the trip hazard and I do not include that amount in this award. 37 The plaintiff also claims the sum of $15,409 for ducted air conditioning, which he claims he needs because of his extensive scarring which has lessened his body's capacity for controlling temperature. His claim is made up as to $10,500 for installation and $40 per week running expenses. I do not accept the claim of $40 per week running expenses. It would seem to me to be somewhat high. Doing the best I can I would allow $20 per week maintenance, running costs and ultimately replacement which in all would amount to $19,800 in addition to the $10,500 installation. 38 There is no dispute between the parties that the plaintiff is entitled to the cost of modifying his house to create a special storage system for his prosthesis ($3,600) and to modify the shower and bathroom with an isolated temperature mixer ($3,600). 39 The plaintiff claims the cost of an exercise therapy room adjacent to a proposed swimming pool, which he claims he needs for therapy and exercise. I am of the opinion that the installation of a small domestic swimming pool for therapy and exercise is reasonable to meet the plaintiff's needs bearing in mind his disabilities. I am not persuaded it is necessary to create a separate exercise therapy room for him. Doing the best I can I would allow the plaintiff the sum of $60,000, which in my opinion, is a reasonable allowance for the installation of a small domestic swimming pool sufficiently large to allow him to exercise and for its future maintenance. 40 I have already referred to the fact that the plaintiff will need to have his motor vehicles modified. Had the plaintiff not been injured I infer he would have replaced his motor vehicle at regular intervals. Accordingly I award him the sum of money representing the difference between what he would have spent on motor vehicles had he not been injured and the expenses likely to be incurred by him in order to accommodate his disabilities. The defendant does not deny the plaintiff is entitled to be compensated under this head and doing the best I can I will allow the plaintiff the sum of $90,000 being the present value of the difference between the cost of acquisition and maintenance of the type of vehicle the plaintiff now requires and what would have been the cost of his acquisition had he not have been injured. To this I would award a sum of $11,500 (which is really a claim under Griffiths v Kerkemeyer) referable to the maintenance of motor cars the plaintiff formally did for himself and for his wife and which now must be paid for. 41 In my opinion the plaintiff is entitled to some allowance to accommodate the need in the future for wheelchair transport. He claims the sum of $20,000. The defendant has made no submissions concerning this matter. There is evidence that with increasing age and weakening of his remaining muscles he is likely to have further problems with his right knee and he may eventually require a four wheel motor bike or wheel chair to remain mobile. In my opinion he is entitled to the buffer, he claims, of $20,000. 42 It is agreed I must include in the verdict an amount of $6,300 representing the tax he is obliged to repay the defendant but which he has not received (Fox v Wood). Future Economic Loss. 43 The defendant concedes an amount of $297,252 should be awarded to the plaintiff to compensate him for future economic loss (including loss of superannuation benefits). It acknowledges the plaintiff is entitled to a sum of $76,770 being the present value of the loss of $100 per week for the remainder of his working life (less 15 percent for vicissitudes). To that the defendant concedes it is obliged to pay the plaintiff the sum of $171,334 to accommodate the contingency that the plaintiff may not be able to earn as much in the future as he is now earning. The defendant concedes that to that must be added a sum of $31,248 for the present value of loss of superannuation benefits. 44 At the present time the plaintiff is earning about $100 per week less than he would have earned had he not been injured. The plaintiff is still doing the light job created for him by the defendant. Had the plaintiff not been able to work at the present time I would have estimated his loss of earning capacity to be reduced by at least 70 percent. As I have said his diminution in earning capacity has not been productive of total economic loss that might otherwise have been the case because of his reemployment by the defendant as an Assistant Project Manager. The evidence is the defendant made a position available for him. Its reason for doing so has not been explored but I assume it felt obliged to assist the plaintiff not only because its negligence caused his injuries but also because the plaintiff was, in fact, a favoured employee by reason of his intelligence, enthusiasm and general attitude to work – attributes which I find, continued after his accident. An award of compensation may diminish the defendant's sense of moral obligation although there is no evidence one way or the other about the matter beyond the plaintiff being told that his job should be safe. I do not infer that as soon as this case is over the plaintiff will lose his job or that he is likely to lose his job in the near future. 45 The defendant called no evidence on this issue for the reason, one supposes, that it does not have a policy of signing employees up for life and, statements of present intention would not conclude the matter in favour of an assumption of permanent employment by the plaintiff until the plaintiff was sixty five. For example although privatisation appears to have been deferred in the electricity industry it may re emerge in the future. I have concluded that if the plaintiff, for one reason or another, could no longer work for the defendant his capacity to earn money on the open labour market would be extremely restricted. 46 On behalf of the plaintiff three scenarios under the heading "Future Economic Loss Including Superannuation" are presented. They range from a claim of $405,884 to $537,937. 47 In my opinion the plaintiff is entitled to be compensated for the risk that if, for one reason or another, the defendant ceases employing him he will find employment on the open labour market extremely difficult notwithstanding his continued employment with his disabilities will stand him in good stead. Doing the best I can I fix an amount of $450,000 for future economic loss. In all the circumstances I do not think it is appropriate to deduct from the 15 % on account of what has often been called "vicissitudes". That is because I have calculated his future economic loss by reference to the comparable wages presently being paid to Mr Crewdson. I have assumed that the plaintiff will continue in the foreseeable future to work for the defendant. That is an assumption I make in favour of the defendant. I do not think that it is reasonable, in these circumstances, to deduct from what is otherwise an appropriate allowance for loss of earning capacity a further 15 percent. 48 Accordingly I award the plaintiff the sum of $2,694,749 made up as follows: 1. Pain and suffering (a most extreme case) $232,400 2. Past economic loss (agreed) $54,017 3. Fox and Wood (agreed) $6,049 4. Past out of pockets (agreed) $399,914 5. Loss of earning to date of trial (agreed) $53,403 6. Future economic loss $450,000 7. Future medical expenses Future medical, pharmaceutical, physiotherapy etc (agreed) $53,403 Future operations (Dr Haertsch) $60,000 Future treatment for hypertension, renal function tests $$38,400 Prostheses $671,762 $823,565 8, Griffiths v Kerkemeyer Past (including $7,000 for past inability to care for his child) $79,940 Future (including future child care) $408,461 9. Home modifications $187,000 Total $2,694,749 49 Note no interest is claimed for reasons not relevant to this claim. ********** 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. 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.