- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Zavodny v Couper & Anor  QSC 42
ALAN FRANK ZAVODNY
KEVIN RAYMOND COUPER
QBE INSURANCE (AUSTRALIA) LIMITED
SC No 523 of 2016
Supreme Court at Cairns
13 March 2020
13, 14, 18, 19 November 2019
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where plaintiff travelling by bike along road – where parked car reversed quickly from parking spot on side of street – whether plaintiff was keeping adequate lookout – whether plaintiff travelling at excessive speed – whether plaintiff ought to have been aware he was not readily visible to drivers of parked vehicles
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff had history of work as master of fishing vessels – where plaintiff injured ankle and shoulder when falling off bike caused by negligence of first defendant – where plaintiff developed adjustment disorder with depressed mood – where liability admitted – where quantum of past and future earnings in issue – whether injuries and psychiatric condition prevent plaintiff returning to chosen occupation – whether court can rely upon plaintiff’s assertions of what employment opportunities he would have perused
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – DAMAGES FOR GRATUITOUS SERVICES – where plaintiff received past care and assistance – whether past care and assistance meets threshold in s 59 Civil Liability Act 2003 (Qld)
Civil Liability Act 2003 (Qld), s 55, s 59
Civil Liability Regulation 2003 (Qld)
Transport Operations (Road Use Management—Road Rules)
Regulation 2009 (Qld), s 129(1)
Brown v Holzberger  QCA 295, cited
Boon v Summs of Qld Pty Ltd  QSC 162, cited
Minchin v Public Curator of Queensland  ALR 91, cited
Nunan v Gerblich (1974) 10 SASR 39, cited
Calverly v Green (1984) 155 CLR 242, distinguished
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, considered
Guidera v Government Insurance Office (NSW) (1990) Aust Torts Reports 81-040; (1990) 11 MVR 423, considered
Rossi v Westbrook and Anor  QSC 311, cited
A R Philp QC with R Armstrong for the plaintiff
M A Jonsson QC with R Morton for the defendants
Roati Legal for the plaintiff
Barry.Nilsson for the defendants
The plaintiff Mr Zavodny was injured when he fell from his bicycle when trying to avoid a vehicle being reversed negligently by the first defendant Mr Couper. He alleges his injuries, particularly a consequential impairment of his left ankle, have left him unable to continue in his employment as a captain of game fishing boats. He claims damages for his injuries and consequential loss against Mr Couper and Mr Couper’s insurer, the second defendant, QBE Insurance (Australia) Limited (“QBE”).
His action is brought against Mr Couper and QBE, as required by s 52 Motor Accident Insurance Act 1994 (Qld). Section 52(4) of that Act requires, if judgment is given in favour of Mr Zavodny, that it be given against QBE and not Mr Couper.
It is admitted that the accident in which Mr Zavodny fell from his bicycle was caused by the negligence of Mr Couper. An allegation of contributory negligence was pursued at the four-day trial but, as will be seen, it lacked substance. Indeed, Mr Couper was not even called as a witness at the four day trial of this matter.
It is also not in issue that Mr Zavodny suffered injury and loss as a result of the accident. However, there is little common ground as to the true consequences of Mr Zavodny’s injuries. The quantum of all heads of damage is in dispute.
Mr Zavodny’s life before the accident
Mr Zavodny is a single man. He was born on 20 October 1954. He is now 65 and was 59 at the time of the accident on 10 November 2014.
He left school in year 9. He holds no formal trade or tertiary qualifications.
Mr Zavodny has a life-long interest in fishing. He worked part-time in that field while growing up in Fremantle. After leaving school he worked as a junior clerk and then joined the Army as an infantryman based in Townsville. After leaving the Army in 1975 he worked as a commercial fisherman and deckhand on game fishing boats, travelling widely in that line of work.
In the 1980’s Mr Zavodny worked as a labourer knife hand at a meatworks and also worked as a deckhand for various marine companies. From 1990 he worked as a ship’s master and marine engineer. He progressed to specialising in operating game fishing boats, which he describes as his life’s passion. He was successful in game fishing tournaments and was sought after as a game boat captain, being booked months and sometimes years in advance. At the time of the accident he was still a self-employed vessel master, working for variable periods on individual contracts for marine operators and charterers around Australia.
Mr Zavodny was in generally good health. He had previously suffered some injuries and experienced some recurring ailments but he was prima facie fit to continue in his field of work. Whether he had degenerative ailments which would have precluded him working in the long run is dealt with later.
Mr Zavodny did not have a permanent residence but was living in Townsville at the time of the accident in September 2014. At that time he was intending to move to Perth in December 2014, taking up a job offer from Mr Guy Travis to manage fishing vessels there. He wanted to do so in order to be closer to his sister, who resided in Perth and whose husband was terminally ill. Those plans were thwarted by the accident.
The accident occurred at about 11.55 am on 10 September 2014, on McIlwraith St, South Townsville, near a shop called Ede’s. Mr Zavodny was riding his electric bicycle along McIlwraith St in a westerly direction, intending to shop at Ede’s. McIlwraith St is a wide, two-way street, with single lanes heading in both directions. It is paved with bitumen extending from the footpath edge. There are spaces for nose-in vehicle parking at the roadside and there is substantial space between the rear of those parking bays and the left edge of the traffic lane. Mr Couper’s Holden Colorado motor vehicle was parked in one of the bays near Ede’s, along with other parked cars.
Mr Zavodny was riding to the left side of the west bound traffic lane as he approached Ede’s. He had slowed his speed, his intention being to pull into a parking bay near the front of Ede’s. He was drawing level with Ede’s when Mr Couper’s vehicle reversed out, without warning, immediately in front of Mr Zavodny’s line of travel.
Mr Zavodny swerved hard right to avoid colliding with the vehicle but as a result the bike jack-knifed and he fell to the bitumen, sustaining injuries. The evasive action, fall and injuries were caused by Mr Couper reversing his vehicle into Mr Zavodny’s path of travel.
It is common ground that Mr Couper owed a duty of care to other road users, including a duty to reverse safely, keep a proper lookout and give way. Mr Couper’s reversing manoeuvre breached that duty. His breach caused Mr Zavodny to fall and sustain injury. None of this aspect of the case is in issue, save for an allegation of contributory negligence.
The allegation of contributory negligence asserts, in summary, Mr Zavodny was not keeping adequate lookout, was travelling at too excessive a speed to negotiate around reversing vehicles and ought to have been aware he was not readily visible to the drivers of vehicles parked at the street side. It is also alleged a reasonable person in Mr Zavodny’s position would have been travelling in or around the centre of the left-hand side carriageway of the street in order to be more visible and allow sufficient time to negotiate safely around reversing vehicles.
Pursuant to s 23(2) Civil Liability Act 2003 (Qld) the standard of care required of Mr Zavodny was that of a reasonable person in his position, with the matter to be decided on the basis of what Mr Zavodny knew or ought reasonably have known at the time. If Mr Zavodny did fail to take reasonable care, s 10(1) Law Reform Act 1995 (Qld) would require a reduction of damages recoverable for Mr Couper’s breach to the extent considered just and equitable having regard to Mr Zavodny’s share in responsibility.
Mr Couper’s vehicle was the western most of three cars parked in bays near the front of Ede’s. It may readily be inferred that a reasonable person in Mr Zavodny’s position ought to have known of the presence of those parked vehicles, in the vicinity of the very shop he was approaching from the east, and of the possibility that one of the vehicles might reverse. His duty in controlling his vehicle was to make reasonable allowance for that possibility. The qualifying of Mr Zavodny’s obligation as an obligation to make “reasonable” allowance caters for the variability and thus foreseeability of the manoeuvre by which a vehicle may reverse.
For example, it is well within the ordinary experience of road users that when they are travelling behind a row of vehicles parked nose-in, they might not be seen by one of the drivers of such vehicles, who may commence reversing gradually, that is, reversing slowly or edging outwards. Cross-examination of Mr Zavodny exposed some doubt as to whether the vehicles in this case were parked nose-in at 90 degrees to the kerb or nose-in at an angle to the kerb. Mr Zavodny’s recollection in evidence-in-chief was that the vehicles had been parked at 90 degrees to the kerb but he acknowledged a sketch which had been inserted in his notice of accident claim form pictured the reversing vehicle at an angle. Google Earth photographs introduced into evidence show the vehicle parking to be at 90 degrees to the kerb, but there was no independent evidence as to whether that is how the lines were marked back at the time of the accident. In any event, this issue is a diversion of no moment in the present case. On either view of the matter, Mr Zavodny was approaching a line of cars that were parked nose-in. There was obvious potential for Mr Couper’s view of oncoming traffic to be obscured until he emerged somewhat from the line of parked vehicles, such that it would be unremarkable if his vehicle started to reverse or edge out slowly.
The creeping initiation of a reversing manoeuvre involves a degree of caution which is commonplace for drivers whose vision of oncoming road users may be partially obscured until emerging a little from the line of parked cars. It is uncontroversial that Mr Zavodny ought reasonably have foreseen that one of the parked vehicles might commence reversing in such a manner as he was approaching. It is uncontroversial that a reasonable person in his position should have been attentive to those vehicles and travelling at a speed and proximity from the rear of them which made enough allowance to safely avoid an accident in the event of such a gradual reversing manoeuvre. However, Mr Couper did not reverse in that manner.
Mr Zavodny explained Mr Couper’s vehicle “just backed out”. He said:
“[G]enerally, when someone backs out, I would think that … I mean, I always do it. I back out a little bit and check. He didn’t. He just kept coming. He didn’t stop to investigate what was going on. He just drove out. I had no time to hit the horn, do anything.”
The overall effect of his evidence was that the vehicle did not emerge slowly or gradually. Rather, it reversed abruptly out in front of him.
An attempt was made in closing submissions to invite the inference Mr Couper’s vehicle had crept out a short distance and stopped. This was based on a remark by Mr Zavodny that he had “managed to get past” Mr Couper’s vehicle, as if that somehow meant the vehicle stopped. The context in which that remark was made is illuminating. What Mr Zavodny said was:
“The bike’s big enough to be seen and I think I was far enough out – well, I missed him. I managed to get past him. I’d been any closer in, I would have hit him for sure so I think I was at a good distance from the rear of those cars. But as I said, he drove out in front of me. What was I to do?”
Clearly his reference to getting past him was a reference to avoiding actual contact as part of his unsuccessful evasive manoeuvre. The above passage makes it abundantly clear, contrary to the inference sought, that Mr Couper’s vehicle did not stop and rather it kept coming.
Mr Zavodny was the only witness who testified to the circumstances of the accident. He did not testify that he was inattentive or was travelling quickly or that he was travelling close to the rear of the parked vehicles.
Mr Zavodny testified in evidence-in-chief that earlier in McIlwraith St he had been travelling at around 15 km per hour, or “maybe a bit faster”, but had slowed to around 10 km per hour as he approached Ede’s. It is inherently likely that Mr Zavodny did slow in his approach to Ede’s because he would be stopping there and on his own account was looking for a parking bay as close by as possible.
In cross-examination Mr Zavodny conceded stating to a police officer at the scene that he “was travelling at 15, 20 km per hour along McIlwraith St” but he also explained he had told the police “more than that”. His statement to police is not inconsistent with his estimate in chief of the speed he had been travelling at along McIlwraith St prior to approaching Ede’s. It is a higher estimate than the speed he testified slowing to in approaching Ede’s but the rest of what he told police was not explored. Moreover, these are only estimates, there being no evidence Mr Zavodny looked at a speedometer or even had such a device on his bike. I accept he was travelling sufficiently slowly in the circumstances and certainly slowly enough to take safe evasive action had Mr Couper’s vehicle been reversed in a gradual manner.
As to Mr Zavodny’s proximity to the rear of the parked vehicles, he testified to riding in the left side of his traffic lane, which, as he put it in the above quoted passage, was “far enough out” from the rear of the parked cars. Such a path also conformed with his legal obligation under s 129(1) Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) to ride as near as practicable to the far left side of the road. The pleaded allegation that Mr Zavodny should have been riding in the centre of his traffic lane in order to be more visible and allow sufficient time to negotiate safely around reversing vehicles overlooks the spatial configuration of the street. The street is broad. While there was no evidence of the measured distance between the edge of the traffic lane and the rear of the parked vehicles, it is apparent from the exhibited Google street map photographs that it would have been a substantial distance. Riding at the centre of, rather than the left side of that lane, as Mr Zavodny was, would not have made a material difference to his prospective visibility and time to negotiate around reversing vehicles.
Of course, if Mr Zavodny had left the edge of the lane where he says he was riding, and ridden closer in at the rear of the parked cars in his approach to Ede’s, that would likely have reduced his visibility to drivers of those cars and his capacity to take evasive action. However, there is no evidence that he did so. His evidence, which I accept, and which was affirmed without contradiction in cross-examination, is that he was riding on the left side of the laneway. While there is no evidence that there was a side lane marking, it appeared he was referring to an alignment running at the left side of a traffic lane of ordinary width. There is no evidence that he had ridden away from such an alignment, heading further left towards the rear of the parked cars.
In the absence of evidence that Mr Zavodny was not keeping a proper lookout or was, in the circumstances, travelling unreasonably fast and close to the rear of the parked cars, there is no basis to infer such facts merely because of the fact that Mr Zavodny failed to avoid Mr Couper’s reversing vehicle without incident. The position might be different if there was evidence that Mr Couper’s vehicle was creeping slowly out, thus providing some indication to reasonably attentive road users that his vehicle was reversing. If that is how the vehicle had been reversed out it would be difficult to imagine how the accident could have occurred in the absence of some accompanying negligence on Mr Zavodny’s part. However, that is not the way the vehicle was reversed out.
Mr Zavodny was keeping a proper lookout and was travelling at a speed and distance from the parked vehicles which made reasonable allowance for the foreseeable possibility that Mr Couper’s vehicle may reverse from its bay. Mr Zavodny’s obligation to make reasonable allowance for that possibility did not extend to allowing for the prospect of an abrupt reversing manoeuvre of the kind undertaken by Mr Couper.
Mr Zavodny did not fail to take reasonable care. There was no contributory negligence on his part.
I record for completeness that the state of the adduced evidence made it unnecessary, in reaching the above conclusion, to consider the significance of the unexplained absence of testimony from Mr Couper.
As a result of the accident Mr Zavodny suffered a deep wound near his left ankle and a fracture to his left medial malleolus, the bony protrusion of the side of the ankle. He had right and left sided neck pain, as well as chest and rib tenderness and numbness to his right fingertips.
He also sustained soft tissue injuries to the neck and, more significantly, to the left shoulder. The onset of the shoulder injury, its extent and connection with the accident is in issue and discussed further below.
Mr Zavodny did not enjoy a complete recovery from his injuries. Indeed, the effects of his ankle injury were compounded by the development of infection in the form of osteomyelitis. It is common ground that the osteomyelitis and its consequences were causative consequences of the accident and Mr Couper’s negligence.
It is also common ground that secondary to his physical injuries Mr Zavodny also developed an adjustment disorder with depressed mood.
Mr Zavodny’s life after the accident
The ensuing summary of Mr Zavodny’s life after the accident derives from his quantum statement, his oral evidence and the evidence of some lay witnesses. The views of the expert witnesses about Mr Zavodny’s injuries and their impact on his life will be dealt with later.
Mr Zavodny was attended by ambulance officers and taken to hospital after the accident. He was operated on and discharged on 11 September, using crutches. He stayed at the home of his friends, Dr and Mrs Savis, on Magnetic Island. The wound to his ankle became infected, his ankle swelled. He was in great pain. Antibiotics did not resolve the infection. Eventually a CT scan revealed the presence of osteomyelitis, a bone infection, near the site of his left ankle injury.
He was re-admitted to hospital for treatment from 8 October 2014. He was subjected to repeated debridement, including of bone, and split skin grafting. He was discharged on 21 October 2014, staying with his former partner, Ms Williams, until 20 December 2014. During that period he underwent 60 sessions of hyperbaric oxygen therapy to aid tissue repair at the ankle.
The hyperbaric oxygen therapy resulted in some deterioration of Mr Zavodny’s vision and cataracts but reliance upon that as a causal result of the accident was not pursued. The deterioration is adequately countered by the use of corrective lenses and thus irrelevant to any assessment of Mr Zavodny’s capacity to work.
Mr Zavodny stayed with the Savis’s from 20 December 2014 during Christmas and from 28 December 2014 to 15 February 2015 he resided at Lucinda at a cottage owned by Mrs Jane Roati. He repeatedly travelled to Townsville for recuperative medical care.
He developed swelling and tenderness to the left elbow associated with overuse of crutches as his ankle wound healed. The wound healed by 23 January 2015 but swelling and tenderness continued, and he still used a compression bandage for some further time.
It is clear Mr Zavodny suffered considerable pain and impaired mobility in connection with his ankle injury. Initially his ankle was in a moonboot and later in a cast. He needed crutches and later a walking stick to aid movement.
Mr Zavodny travelled to Perth on 16 February 2015. His brother-in-law was gravely ill and died on 17 February 2015. While in Western Australia he and Mr Thomson took the vessel Azure from Fremantle to Exmouth.
Mr Zavodny returned to Townsville on 18 April 2015. According to his quantum statement he was then staying with the Savis’s although his notice of accident claim form signed 22 April 2015 recorded his home address at 3/136 Patterson Parade, Lucinda. He explained in cross-examination that the Patterson Parade address was the unit of someone known to him where he left property and that Mrs Roati’s cottage at Lucinda, at which he had earlier stayed, was located at 31 Gossner Street. It appears likely that he stayed with the Savis’s through to 26 April 2015.
He returned to Western Australia on 26 April 2015 and attempted a work trial there. It will be recalled he had intended to commence work for Mr Guy Travis from late 2014 but he was left in no fit state to do so because of the accident. Mr Travis and Mr Dave Thomson arranged the April work trial but it was unsuccessful because of Mr Zavodny’s physical limitations resulting from his injuries.
Mr Thomson gave evidence that Mr Zavodny did come to Western Australia on a number of occasions to attempt to work with him and Mr Travis. In 2015, he recalled this involved the movement of a vessel, the Azure, from Perth to Exmouth, possibly in February, and at a later stage, probably in April, the participation of that boat in an earlier postponed annual game fishing competition in Exmouth. He testified of these occasions that he had to help Mr Zavodny skipper the boat because Mr Zavodny was not confident or capable of being the skipper because he kept falling over and tripping and could not stand for any length of time. Mr Thomson observed Mr Zavodny encountered difficulty driving the boat, particularly backwards, backing up on fish and could not do the mechanical work, being physically unable to manouvre into the engine room.
Mr Zavodny returned to Townsville on 14 July 2015 and thereafter resided at Mrs Roati’s cottage, receiving some care and assistance from her.
In August 2015 he tried to skipper the vessel of Pauly Dametto in the Lucinda Light Game Fishing Tournament, but found he was unable to perform the role and Mr Dametto “took it over”. Mr Dametto gave evidence confirming Mr Zavodny did not skipper the boat, explaining Mr Zavodny could not stand up properly, particularly when conditions became “a bit rough” and, because he was “very wobbly on his feet”, could not tend to tasks such as rigging bait on a rocking boat.
Mr Zavodny made another attempt to return to work as a vessel master with Northern Conquest Charters in 2016 but once again could not manage his ordinary work tasks because of the limitations resulting from his injuries. In cross-examination he explained that because he had not performed well he did not charge Northern Conquest Charters. His limitations included difficulties in standing, climbing and manoeuvring amidst tight spaces. He attended upon a physiotherapist after this trip, reporting that by the time he had returned home from the trip he was experiencing burning pain on top of his shoulder.
Mr Zavodny unsuccessfully attempted a further work trial as a vessel master with Mr Thompson in Western Australia in November 2016. He was offered full-time permanent employment by Mr and Mrs Thomson in December 2016 but was unable to take up that written offer because of the pain and impairment caused by his injuries. That offer was for Mr Zavodny to run and manage the operations of the Thomsons’ vessel Azura as well as Mr Travis’s vessel, the Alura, whereas the offer of work Mr Zavodny would have taken up at the end of 2014, but for the accident, related only to Mr Travis’s vessel, the Alura.
Mr Thomson agreed in cross-examination that at the time of writing the December 2016 letter of offer he had had an opportunity to assess Mr Zavodny’s recovery from his injuries. Counsel for the defendants later tried to rely upon that as evidence that Mr Thomson must have considered Mr Zavodny no longer lacked capacity for the work. Yet he was not asked about that when cross-examined. Moreover, there is no suggestion of Mr Thomson having witnessed Mr Zavodny’s capacities other than the occasions when Mr Zavodny had been unsuccessful in trying to perform the Master’s role. Indeed, Mr Thomson’s letter included the following:
“… We realise that you could not accept our previous offers to work on Alura and Azura. However, we are hopeful that you have made some recovery from your accident. …
If you are still unsure of your physical capabilities at present, we are prepared to entertain a three month trial period to enable you to assess your suitability for the role.”
Such inclusions hardly suggest any confidence that Mr Zavodny had recovered and become fit for work. Mr Thomson testified his written offer was not taken up at that time, explaining he understood Mr Zavodny at that time wanted to work over on the east coast and or had commitments. That aspect of his evidence was not further explored and I accept Mr Zavodny’s evidence that his reason for not taking up the offer was because of his lack of physical capacity to perform the work.
In March 2017 Mr Zavodny attempted a further work trial as vessel master with Mr Thomson but again found he was unable to properly perform his work because of the impact upon him of his injuries. In cross-examination he explained that he again did not charge for his work because he was not able to do the job properly.
Mr Zavodny was diagnosed with hairy cell leukaemia at the beginning of 2016. He elected for observation of the condition and it did not interfere with his capacity to work at that stage. After his blood count became more concerning he elected to undergo a course of chemotherapy in November 2017 and was advised not to work during the chemotherapy and for at least three months afterwards. Mr Zavodny’s quantum statement does not claim economic loss for the 15 week period when he was, hypothetically, “off work to undergo chemotherapy treatment”, from 23 October 2017 to 5 February 2018. It is unlikely that period was solely the period of the treatment and it likely includes all or most of the three months after it, during which he was advised not to work. Indeed exhibit 20 refers to testing in February 2018, “three months post chemotherapy”, as revealing the disease to be in complete remission. Mr Zavodny explained that during his recuperation he had told his treating doctor that he “felt pretty good” and wanted to return to work as soon as he could and was told by his doctor that he could do so if he felt up to it. I accept 15 weeks is a reasonable estimate of the period when he would have been unfit for work regardless of the accident’s impact.
In February 2016 Mr Zavodny commenced employment as a casual research assistant in fishery monitoring for the Department of Agriculture and Fisheries. That work involves monitoring boat ramp activities at Lucinda. It is not physically demanding but is considerably less remunerative than work as a vessel master.
Mr Zavodny’s left ankle injury continued and continues to be a significant problem in his life. On his account he continues to suffer pain, stiffness and swelling to the left ankle with pain aggravated by walking, standing, squatting, climbing and lifting. He explained that aggravation takes the form of a hot, sharp stabbing pain and severe cramping.
His left ankle is seriously scarred as a result of the accident and the saga of consequent infection and medical treatment. Parts of the scars are sensitive to touch. His left foot is numb along the instep onto the sole. His left thigh is also scarred from skin grafting for the ankle. His left foot is discoloured, his left ankle is swollen and he asserts he has wastage to his left thigh and calf.
Mr Zavodny’s quantum statement explains that his ankle injury has left him with poor balance in his left leg. His left ankle feels unstable. He has difficulty accessing inclines and declines and negotiating uneven surfaces. He can walk on flat terrain for about 15 minutes. He cannot run or jump due to left ankle pain. At times he finds he walks with a limp and needs to use a walking stick to assist his mobility. While he drives an automatic transmission vehicle, he finds he can only drive for about 45 minutes before experiencing cramping in his left ankle and left foot.
The progress of Mr Zavodny’s shoulder injury was not addressed in any detail in his quantum statement. That statement merely records that symptoms in his left shoulder become more pronounced after he returned to work at sea. According to his quantum statement, he continues to suffer from intermittent sharp pain in his left shoulder which is aggravated by weight bearing, gripping and lifting. The shoulder pain is said to radiate down his left arm when it becomes worse. Mr Zavodny’s quantum statement also describes him experiencing intermittent neck pain a couple of days a week with the pain being aggravated and extending into his head as a result of prolonged bending.
Without minimising the significance of those upper body problems, it is obvious from Mr Zavodny’s testimony, that the most significant impact upon his capacity to work has been his ankle injury. While his shoulder injury diminishes his capacity on vessels to manoeuvre around enclosed spaces and hold on when climbing, that capacity is in any event inadequate by reason of his ankle injury.
On Mr Zavodny’s account his ankle injury has deprived him of the good balance, or sea legs, mariners’ need to move and climb about a moving vessel effectively, including over, up and down damp decks, gunwales, steps and ladders. The absence of sensation under his foot impairs his awareness of when his foot is touching a surface when climbing and moving about on vessels. It means he stubs his foot more often and no longer jumps the short distances he ordinarily did in getting on and around vessels. His ankle injury makes it more difficult to bear heavy loads about vessels. It also makes it very difficult to climb up and down ladders and perform tasks standing in elevated locations, such as flybridges and marlin towers. The injury also impairs his capacity to effectively operate the boat when at the wheel, in particular when having to stand up to perform the task, often in rough water, and operating the boat when trolling and reversing up onto a fish which an angler is in the process of fighting. His ankle injury impairs his ability to manoeuvre into and around engine rooms and other confined spaces which must be accessed to tend to common servicing and repair tasks. For example, squeezing into a corner to service an exhaust system, crawling under hosing and cylinder heads, getting under battery systems, moving about to work on or replace pumps and conducting oil changes are all tasks Mr Zavodny is not agile enough to perform effectively anymore because of his ankle injury. Mr Dametto gave evidence corroborating the fact that Mr Zavodny’s ankle injury impairs his capacity to access confined spaces to tend to equipment on board.
On Mr Zavodny’s account, which I found credible, the ankle injury has such multi-dimensional adverse consequences for Mr Zavodny on board vessels that it is difficult to conceive of any realistic form of paid seafaring work on vessels for which Mr Zavodny would be physically competent.
Mr Zavodny rejected the suggestion in cross-examination that he had been selective about the contracts he had attempted to take on since the accident. I accept his evidence of his repeated attempts to return to work as a master and that they failed because of his incapacity, caused by his injuries, to perform the duties of that role.
Mr Zavodny has suffered from disturbed sleep since the accident, finding it difficult to find a comfortable position to sleep in because of his pain. He experiences fatigue during the day because of his disturbed sleep patterns. His injuries have interfered with his sex life in that his ankle pain limits positioning and his pain and mental state have left him with a reduced libido. He experiences difficulty concentrating and has suffered from low moods, anxiety and feelings of depression since the accident.
Mr Zavodny considers his injuries have placed increased stress and strain on his personal relationships and he is generally more socially reclusive than prior to the accident. He was taken in cross-examination to the recording of an appearance by him in a television interview conducted by media personalities Hamish and Andy. The content of that interview was of no particular moment in this case. This is not a case in which the psychological impact is said to be so crippling that Mr Zavodny would be unable to travel and undertake an interview of the kind in question.
Mr Zavodny evidently derived great pleasure and satisfaction from successfully pursuing his lifelong employment dream as a vessel master and is distraught about his incapacity to pursue that vocation because of his injuries.
Mr Zavodny aspired to physical fitness prior to the accident and enjoyed swimming and attending gym for exercise. He now finds that swimming aggravates his left shoulder and left ankle and he experiences difficulty kicking because of his ankle injury. He still pursues fitness by attending gym but is restricted in the gym work he can do because of his injuries. He has difficulty lifting weights and taking loads through his left leg. Much of his gym work is focussed upon upper body work, though he is limited to using light weights.
My overall impression of Mr Zavodny’s evidence about the impact of his injuries upon his work and life is that it was credible and reliable, subject to a minor qualification. That qualification is that he at times had difficulty in recalling the precise timing and sequence of some events, particularly travel, work trials and when and where he resided. That coincided with an obviously frustrated demeanour on his part. It appeared he was doing his genuine best to recall such detail. In any event those difficulties were, in the broader context of the case, of minor significance and did not, in my view, compromise his broader credibility or reliability.
It remains to have regard to the expert evidence, in assessing the true impact of Mr Zavodny’s injuries. However, my strong impression of Mr Zavodny’s evidence, which was well tested by cross-examination, was that Mr Zavodny has earnestly pursued his recovery and physical fitness. It appeared from his evidence that, far from being a malingerer, he has been genuinely committed to returning to his beloved field of work. That he has been unsuccessful in doing so is obviously a source of considerable frustration to him.
Mr Zavodny adduced evidence from a variety of expert witnesses. Those whose evidence touched upon the ankle injury were Dr Ronald Thomson, Dr John Maguire, Mr Mark Scalia, Ms Daina Clark and Associate Professor Richard Lewandowski. Of the defence experts, those whose evidence was relevant to the ankle injury were Dr John Fraser and Ms Sanja Zeman. Generally speaking, the plaintiff’s experts were more favourable for the plaintiff than the defendants’ experts and vice versa. While the experts were drawn from different fields of expertise, it is instructive to review their opinions chronologically, ending with the expert who examined Mr Zavodny most recently.
Dr Ronald Thomson
In his report Dr Thomson noted Mr Zavodny had presented with an extremely high level of demonstrated disability to the left ankle area. He opined of the ankle:
“The joint is stiff, there is a slight varus tilt of the left foot causing him to take weight on the lateral side of the foot, he has a pronounced antalgic gait and there is reduction in strength/power of the left lower limb and the whole part is substantially unreliable.”
Dr Thomson noted Mr Zavodny’s pronounced antalgic gait was associated with excessive weight bearing on the lateral aspect of the left foot. He noted some left thigh and left calf muscle wasting, with each area measuring one centimetre less in circumference than the corresponding location on the right leg. Conversely, the left ankle was swollen, with its circumference being one centimetre greater than the circumference of the corresponding position on the right ankle. The left ankle was tender to palpation, particularly medially. The skin-grafted areas of the ankle were hypersensitive to even very slight touch.
Dr Thomson opined the left ankle’s dorsiflexion was reduced to 10 degrees and plantar flexion was also reduced to 10 degrees. In respect of hind foot impairment, he opined that inversion was reduced to 20 degrees and eversion was reduced to 10 degrees. This was a more confined range of movement than was later reported by the defendants’ orthopaedic surgeon Dr John Fraser.
Dr Thomson acknowledged in cross-examination he had not actually practised clinical medicine since about 1986 and since then had only done medico-legal reports. However, it was not suggested in cross-examination that he lacked expertise to opine as he did. Nor was any aspect of his opinion challenged as being inconsistent with Mr Zavodny’s state on examination. The approach on cross-examination regarding the ankle injury was instead to suggest that, as Dr Thomson reasonably conceded, if Mr Zavodny’s range of ankle movement had significantly improved by the time of a subsequent examination by the defence expert orthopaedic surgeon Dr Fraser, then he would expect a significantly different assessment of Mr Zavodny’s level of impairment in his ankle.
Dr John Fraser
Dr John Fraser, an orthopaedic surgeon engaged for the defendants, provided a report dated 14 December 2015, after an examination on 10 December 2015, a report dated 6 July 2017, after an examination on 4 July 2017 and a diary note of a conference (inferentially with lawyers), dated 30 October 2019. It will be recalled Dr Thomson’s examination was on 16 August 2016, after Dr Fraser’s first examination but before his second examination.
Dr Fraser’s first report noted Mr Zavodny had current symptoms pertaining to the ankle injury suffered in the accident. He noted Mr Zavodny walked with a limp and could not run and that his injuries continued to limit Mr Zavodny’s capacity for prolonged standing and walking. He opined peripheral sensation and circulation in the foot were normal and noted the following ranges of motion:
Dorsiflexion – 0o
Plantar flexion – 50o
Inversion – 10o
Eversion – 5o
While none of those ranges correspond to those noted in Dr Thomson’s report of his subsequent examination, the stand-out variation is that Dr Fraser assessed a plantar flexion range of movement of 50 degrees in contrast to Dr Thomson’s assessment of 10 degrees. This is such a significant deviation in comparison to the other deviations in the assessed range of movements as to suggest some fundamental difference in methodology as distinct from patient condition.
Following Dr Fraser’s second examination of Mr Zavodny on 4 July 2017 he reported that Mr Zavodny had walked without a limp, that the peripheral circulation sensation in the foot was normal and that there was a full range of motion of inversion and eversion “though he complained of pain on performing this act of movement”. He noted 15 degrees dorsiflexion and 16 degrees plantar flexion but subsequently explained the latter was a transcription error and should read 60 degrees. He opined there was no measured loss of motion in the left foot or hind foot.
The above conclusions represent a surprising improvement in the ankle’s range of movement as compared to that range recorded by Dr Thomson just under a year earlier. When the 60 degrees plantar flexion assessment was raised with Dr Thomson in cross-examination he doubted it could be correct, observing that 60 degrees is a very long range of movement and is “more than normal”. Dr Thomson’s scepticism is not the only reason to doubt the accuracy of Dr Fraser’s assessment of ankle movement range; it is an assessment at odds with most of the other experts, including that of the defence occupational therapist Ms Zeman who assessed left plantar flexion as limited by 32 degrees based on an examination occurring after Dr Fraser’s second examination of Mr Zavodny. The least likely explanation for the reported variability is that Mr Zavodny is a malingerer. If he were deliberately overstating the impact of the ankle injury, it would be surprising that he would exhibit a minimal range of impairment of ankle movement on examination by experts he must have appreciated were not his own. The more likely explanations for the variability are that different experts may assess movement ranges differently, that such assessments may involve some degree of subjective judgment and also that Mr Zavodny may have experienced some variation in his range of movement from day to day.
Ms Sanja Zeman
Ms Sanja Zeman, an occupational therapist engaged for the defendants, provided a report dated 20 December 2017 of an assessment of 27 October 2017, a diary note (inferentially of a conference with lawyers) of 22 October 2019 and a diary note (inferentially of a conference with lawyers) dated 12 November 2019.
Ms Zeman asserted her testing of Mr Zavodny’s ankle revealed a normal, active range of movement in all planes except for left ankle plantar flexion which was limited by 32 degrees. She considered he had unlimited tolerance for frequent kneeling but limited tolerance, that is, under three minutes, for squatting. She opined that Mr Zavodny needs to take care when ambulating over rough or uneven terrain but, curiously, the balance scale she used to assess balance suggested there was no impairment to balance or risk of low falls.
As discussed later, there were aspects of Ms Zeman’s evidence which undermined the reliability of her rather robust assessment of Mr Zavodny’s ankle injury.
Dr John Maguire
Dr Maguire noted Mr Zavodny had sustained a soft tissue injury to the left ankle with bony damage to the medial malleolus with secondary osteomyelitis infection requiring skin grafting. Further to the unsightliness of the ankle and skin grafting area he noticed a loss of the saphenous nerve giving altered sensation over the medial aspect of the foot and medial sole of the foot. He noted Mr Zavodny walks with a limp and experiences difficulty walking on uneven surfaces and slopes.
Ms Daina Clark
Ms Daina Clark, a podiatrist engaged for Mr Zavodny, provided a medico-legal report dated 27 February 2018 after an examination on 7 February 2018.
Ms Clark noted pain restriction and guarding through the range of motion of Mr Zavodny’s left ankle, sub talar joint and especially through sagittal and transverse plane motion of the left mid tarsal joint. She also noted restriction in left ankle dorsiflexion and plantar flexion. She noted hesitancy in Mr Zavodny’s loading of his left foot with consequent shifting and weight to the right side. After a static and dynamic force analysis using a force plate treadmill, Ms Clark opined there was ongoing avoidance of loading of the left limb with resultant altered biomechanics of the proximal joints and the contra lateral limb with potential ramifications, not only for the left ankle but also the left knee, right hip and bilateral sacroiliac joints. She opined the loading of the left limb and resultant altered biomechanics was most likely due to the injuries sustained in the accident.
Ms Clark’s report of 27 February 2018 recommended Mr Zavodny have regular ongoing treatment to address the strength deficits and asymmetry and that he use orthotics to assist his foot function and improve limb stability.
An attempt was made in cross-examination of Mr Zavodny to make something of a consultation progress note of Dr Milani, seemingly a general practitioner, whose consultation note included the words:
“Pain almost certainly mechanical in nature coming from altered gait due to ankle injury Alan agrees as pain completely resolved when uses orthotics”
However, Mr Zavodny could not recall saying such a thing to Dr Milani and Dr Milani was not called as a witness. Exactly what pain Dr Milani was referring to in the consultation note is not apparent. It is obvious from Mr Zavodny’s evidence, consistently with Ms Clark’s evidence, that the use of orthotics provides some relief from pain, albeit variable. Dr Milani’s progress note does not in the circumstances undermine the credibility or reliability of Mr Zavodny’s evidence as to the impact of his ankle injury.
Associate Professor Richard Lewandowski
Associate Professor Richard Lewandowski, a plastic and reconstructive surgeon engaged for Mr Zavodny, provided a medical report of 28 November 2018 after an assessment on 27 November 2018.
The report of Associate Professor Lewandowski focussed upon Mr Zavodny’s ankle. His report described the significant scarring to Mr Zavodny’s left ankle. It also noted Mr Zavodny’s range of ankle movement seemed to be restricted by the inability to fully plantar flex his left hallux. His report also noted there was an area of numbness distal to the ankle skin grafts extending along the instep onto the medial sole and onto the lateral sole of the foot. It appears Mr Zavodny’s loss of sensation to the sole of his left foot is permanent.
Mr Mark Scalia
Mr Mark Scalia, an occupational therapist engaged for Mr Zavodny, provided an assessment report dated 23 August 2016 after an assessment on 15 August 2016, a medico-legal report dated 18 October 2019 after an assessment on 3 October 2019, a file note of conference with counsel of 8 November 2019 and a file note of conference with counsel of 11 November 2019.
Mr Scalia noted slight restrictions in Mr Zavodny’s left ankle’s dorsiflexion and eversion, and moderate restrictions in his ankle’s plantar flexion and inversion. Mr Scalia noted Mr Zavodny was unable to balance on his left leg beyond five seconds and he could not perform a full squat and had difficulty kneeling because of left ankle and left knee pain.
On balance, the expert evidence confirms the reliability of Mr Zavodny’s earlier reviewed evidence about the nature and extent of his ankle injury. It has left him with a permanent deficit, marked most obviously by difficulty in maintaining balance in dynamic environments, a lack of sensation under foot and variable pain, generally made worse by the ankle’s active or prolonged bearing of body weight or movement.
Was there a shoulder injury?
Mr Zavodny’s evidence about his shoulder injury was summarised above. In the course of cross-examination it was highlighted that there was no reference to the shoulder injury in the records of the attending ambulance officers on the date of the accident or in the records of the hospital during Mr Zavodny’s admission after the accident. Mr Zavodny believed he would have mentioned it, explaining for example that he could recall saying when someone attempted to lift him at the scene, “Whoa put me down … My shoulder. My neck”. In a similar vein he had a recollection when in hospital of his shoulder receiving attention from the physiotherapist and was sure he complained of pain to his left shoulder at the hospital. While the ambulance and hospital notes make no express reference to the left shoulder injury, the ambulance records refer to, “CO pain to L) neck” and the hospital notes also make abbreviated references to central and left sided neck pain.
It was highlighted in cross-examination that a general practitioner’s consultation note of an attendance by Mr Zavodny back on 19 January 2006, long before the accident, referred to chronic left shoulder pain, albeit with a reference to there being a full range of movement accompanied by the pain. Mr Zavodny did not accept this suggested he had a history of left shoulder pain prior to the accident. He explained he did not believe he had had anything other than a muscle strain and had not experienced the kind of injury to his shoulder which he experienced in consequence of the accident.
It was also highlighted in cross-examination that the first references in available records to a shoulder injury after the accident occurred in general practitioner consultation records from 30 September 2015 and thereafter. The record of 30 September 2015 included:
“Left Shoulder pain – pain + stiff
RTA last YR, no known bone injury of shoulder”
That entry’s reference to RTA is consistent with Mr Zavodny’s assertion that he did suffer his shoulder injury in a road traffic accident.
A consultation note by general practitioner Dr Savis, of 3 December 2015, records:
“L ac jt pain
x-ray severe degen ac jt …
says since MBA
prob aggravation pre-existing”
It was not suggested to Mr Zavodny that he told the doctor he had aggravated a pre-existing shoulder injury. The note “prob aggravation pre-existing” was presumably the doctor’s own opinion – an opinion which ought not be accorded significant weight given Dr Savis was not a witness in the case. The note’s reference to “says since MBA” obviously suggests Mr Zavodny was reporting that the shoulder pain had been present since the bicycle accident.
It is important to appreciate the defendants do admit Mr Zavodny suffered a left shoulder injury as a result of the accident. Admittedly they confine their description of that injury to it being a “minor and transient strain of the supporting soft tissue structures of the left shoulder”. But the admission dispenses with any debate about whether Mr Zavodny suffered a left shoulder injury as a result of the accident. The real issue is whether the injury’s effects were minor and transient or whether they are a causal source of Mr Zavodny’s ongoing difficulty with his shoulder.
Some of the experts provided opinions regarding the shoulder injury. Again, it is helpful to consider them chronologically, ending with the expert who examined Mr Zavodny most recently.
Dr Ronald Thomson
Dr Thomson opined Mr Zavodny had ongoing intermittent pain at the left shoulder which was worse on the usual movement of that part of the body. He also opined it was worse with any load bearing and any attempted overhead activity. He noted tenderness to palpation anteriorly in the subacromial area and that movement of the shoulder against restraining force was painful. In contrast to the normal condition of the right shoulder, he opined the left shoulder was obviously defective with reduced muscle bulk. As to range of motion he noted abduction 90 degrees, adduction 30 degrees, flexion 110 degrees, extension 40 degrees, external rotation 60 degrees and internal rotation 70 degrees.
In cross-examination Dr Thomson acknowledged he was unaware that there was no reference to the left shoulder injury in the hospital records. Dr Thomson was asked to assume that the shoulder “may have been a little sore at the time of the accident, but that resolved” and Mr Zavodny had no symptoms for about a year in his left shoulder. That hypothesis appears to be based on the abovementioned chronology of when records of shoulder symptoms did start to appear in medical records. Dr Thomson responded:
“Not necessarily. It could be submerged and … other more serious problems which this person had. Not too much notice was taken of it, and subsequently, over the course of time, it can resurface.”
Dr Thomson considered it was “quite a long shot” that the shoulder became symptomatic simply because of degeneration.
Dr John Fraser
In his 2015 report Dr Fraser opined Mr Zavodny’s continuing neck and left shoulder symptoms pertained to pre-existing degenerative changes, stating Mr Zavodny had suffered an exacerbation of those “pre-existing naturally occurring degenerative changes in the left shoulder”. In his 2017 report Dr Fraser recorded that there was a full active range of motion in the left shoulder. He opined Mr Zavodny had suffered a soft tissue injury to the left shoulder and a strain of the supporting soft tissues of the cervical spine as a result of the accident.
In Dr Fraser’s diary note of the conference on 30 October 2019 it was noted Mr Zavodny had a full range of shoulder movement on both occasions that Dr Fraser had seen him. The note opined that Mr Zavodny’s “shoulder symptomology is in fact longstanding degeneration and not any injury suffered in the accident”. The foundation provided for that opinion was the absence of medical recording of shoulder problems for 54 weeks after the accident until 30 September 2015 and the fact that the x-ray referred to in Dr Savis’s records of December 2015 detected severe degeneration of the AC joint.
That foundation apparently assumes from the long post-accident absence of medical records of any complaint about the shoulder that Mr Zavodny must not have had shoulder problems in that intervening time, thus eliminating the accident as the logical cause of shoulder problems which supposedly manifested over a year later. However, the assumption is flawed because of Mr Zavodny’s evidence.
Mr Zavodny’s evidence was not only that he did hurt his shoulder in the accident, a fact admitted by the defendants, but also that his shoulder symptoms had become more pronounced after he returned to working at sea, something he did in February, April and August 2015. That he is not recorded as having complained about his shoulder to a doctor in 2015 until 30 September did not cause me to doubt his evidence, as short as it was, about his shoulder symptoms becoming more pronounced when attempting work back at sea. I draw the obvious inference deriving from such evidence, which is that his shoulder symptoms had been ongoing, though less pronounced, since the accident. In other words, I find the symptoms of his shoulder injury suffered in the accident persisted thereafter with variable intensity. It is plausible, and consistent with his apparently stoic endeavours to get on with his life after the ordeal involving his ankle injury infection, that he did not relent and see a doctor until later in the year about his ongoing but variable shoulder symptoms.
I note for completeness that while there was a tangential challenge to Mr Zavodny’s evidence on this point via the highlighting of the paucity of medical records, he was not the subject of cross-examination regarding his evidence that his shoulder symptoms became more pronounced with work at sea.
Ms Sanja Zeman
Ms Zeman, occupational therapist, considered Mr Zavodny’s shoulders had a normal active range of movement in all planes, except for a limitation of 20 degrees in left external rotation. She noted Mr Zavodny had limited tolerance, that is, under three minutes, for reaching overhead with his left shoulder.
Dr John Maguire
Dr Maguire noted an obvious deformity to the acromioclavicular joint, commonly known as the AC joint. He considered it to be an obvious grade two defect, that is, a grade two AC joint injury, accompanied by tenderness at the joint and pain on cross adduction. He noted limitations in the range of motion of the left shoulder with reductions on the left compared to the right as follows:
Forward flexion 1600 on left, 1800 on right
Abduction 1300 on left, 1800 on right
Adduction 400 left, 600 right
Extension 200 left, 400 right
External rotation 600 left, 900 right
Internal rotation 200 left, 500 right
He opined that Mr Zavodny’s shoulder may benefit from surgical intervention.
It was pointed out to Dr Maguire in cross-examination that Mr Zavodny was seen by Dr Fraser, at times prior to Dr Maguire’s examination, and Dr Fraser considered Mr Zavodny’s shoulder had a full range of movement. To this, Dr Maguire responded that Mr Zavodny “certainly didn’t have a normal range of motion” in his shoulder when reviewed by Dr Maguire. He rejected the suggestion that the full range of motion present at the time Dr Fraser saw Mr Zavodny was inconsistent with the presence of a grade two AC joint injury, responding:
“No. Grade two a – AC joint injury, they can have a normal range of motion. If he had a grade three AC joint injury where the – the clavicle is severely displaced, then you would expect him to have some significant changes, but in a low grade two injury, not necessarily.”
Neither party chose to ask whether there may be variability in the range of motion from time to time exhibited in connection with a grade two AC joint injury but it is hardly implausible that an area of injury may fluctuate in its capacity or tolerance for movement.
Dr Maguire’s attention was drawn in cross-examination to an X-ray report in respect of Mr Zavodny’s left shoulder taken on 25 February 2016, in which there was no reference to an AC joint injury. The doctor had not sighted the X-rays in question. He was reminded the X-ray report said:
“There is mild superior migration of the humeral head. Early degenerative changes in the glenohumeral joint with superior osteophyte formation. Degenerative changes in the acromioclavicular joint. No fractures. No calcifications in the region of rotator cuff.”
Dr Maguire testified that while he would expect a radiologist would probably be able to report a low grade two AC joint injury, he would not necessarily expect it to be reported. He explained, credibly in my view, that such an injury might not be noticed by the radiologist, an AC joint injury being a clinical diagnosis.
Dr Maguire was taken to task in cross-examination about the significance of there being no reference in the hospital notes to Mr Zavodny’s left shoulder. Dr Maguire pointed out the major presenting injury was to the ankle and “things often get missed”, but that in any event the hospital notes did record left-sided neck pain. He noted the AC joint is at the lower end of the neck and that it was not very clear what the extent of the left-sided neck pain recorded by the hospital referred to.
Dr Maguire explained he was a shoulder specialist, “unlike Dr Fraser”, and one of the most common injuries presenting to him is an AC joint injury. He said the predominance of people that he sees in that context actually present with lower-sided neck pain, not shoulder pain. He explained:
“So … people will often present to me with … lower neck pain, and it’s actually their AC joint. So it’s … different to a shoulder problem. The shoulder is the glenohumeral joint, and the AC joint is much more medial to that. So the presentations are varied, particularly in a very low grade injury, which is what he had.”
Dr Maguire was asked in cross-examination to assume Mr Zavodny had no symptoms in his neck or shoulder, other than immediately post-accident, for about a year after the accident. Accepting that assumption it was put to him he could not implicate the accident in the AC joint disruption and Dr Maguire responded:
“Well I don’t think you can say that. I – I just – I’m not sure is – is the real answer to your question.”
Mr Mark Scalia
Mr Scalia, occupational therapist, noted in respect of Mr Zavodny’s range of shoulder movement a slight restriction in its external rotation and moderate restrictions in its abduction and flexion.
I accept Mr Zavodny continues to suffer variable pain and variable tolerance and range of movement in his left shoulder.
As to the potential cause of those symptoms, I am conscious x-rays have detected degeneration of Mr Zavodny’s glenohumeral and acromioclavicular joints. But there is a more obvious explanation for his symptoms. I accept Dr Maguire’s evidence that Mr Zavodny has a grade 2 AC joint injury. It is that injury which on the balance of probabilities is the cause of Mr Zavodny’s ongoing shoulder symptoms.
Was that shoulder injury caused by the accident? The defendants admit that Mr Zavodny did suffer a shoulder injury in the accident. Mr Zavodny was recorded as experiencing left sided neck pain directly after the accident. That is consistent, as Dr Maguire persuasively explained, with Mr Zavodny having suffered an AC joint injury. Dr Maguire credibly conceded he would be unsure whether the accident caused the injury when asked to assume Mr Zavodny had no symptoms in his neck or shoulder, other than immediately post-accident, for about a year after the accident. However, that assumption does not reflect the evidence. I have already found on the evidence that the symptoms of the shoulder injury Mr Zavodny suffered in the accident persisted thereafter with variable intensity. They have persisted to the present. I accordingly find Mr Zavodny’s ongoing grade 2 AC joint injury was caused by the accident.
Adjustment disorder with depressed mood
Dr John Chalk
Dr Chalk’s report of his October 2017 assessment of Mr Zavodny opined that in the aftermath of the accident Mr Zavodny developed symptoms of an adjustment disorder with depressed and anxious mood and Dr Chalk diagnosed a chronic adjustment disorder. He opined any likely improvement would depend upon Mr Zavodny’s underlying physical condition, reasoning that a return to “some form of gainful employment with his physical limitations” would likely assist his psychiatric state.
Dr Chalk’s diary note of the conference in October 2019 alluded to Mr Zavodny’s appearance in the television interview conducted by media personalities Hamish and Andy. Dr Chalk understood, wrongly, that the interview had occurred after Mr Zavodny had been assessed by him on 26 October 2017. He opined in the diary note that, based on Mr Zavodny’s appearance in the television interview, he was not presenting with any significant psychiatric problems. In fact, the interview was recorded on 10 September 2017 prior to Dr Chalk seeing Mr Zavodny and diagnosing a chronic adjustment disorder. When Dr Chalk’s error as to the aforesaid sequence was drawn to his attention in cross-examination, he was unconvincing in asserting that his views were unchanged by that realisation. The probability that his initial diagnosis was correct is heightened by a similar diagnosis having been reached by the other psychiatrist in the case.
Dr Riccardo Caniato
Dr Caniato opined that subsequent to Mr Zavodny’s injuries from the accident and problematic recovery he developed an adjustment disorder with depressed mood. Dr Caniato opined that the disorder is secondary to the physical injury, associated pain and limitations on lifestyle, especially the limitations of Mr Zavodny’s ability to engage in his employment as a ship’s captain. He recommended Mr Zavodny undergo adjustment to injury counselling, although he thought the plaintiff would be reluctant to engage in psychiatric treatment.
Dr Caniato examined Mr Zavodny again shortly before the commencement of the trial. While he opined in his report there had been some mild improvement in Mr Zavodny’s symptoms in the intervening period of about two and a half years, by the time he gave evidence after reading all the material he was “not totally certain that there has really been much improvement”. In any event in his second report he opined Mr Zavodny “remained significantly impaired by virtue of his adjustment disorder”. He noted Mr Zavodny was disorganised and difficult to keep on track, experiencing significant troubles with timing, memory and ordering events, and considered that cognition was impaired.
The accident caused Mr Zavodny to suffer from an adjustment disorder with depressed mood. The psychiatric injury is secondary to his physical injuries in the sense it arises in reaction to the impact those injuries have had on his life.
Capacity to work
It is helpful to consider capacity to work before turning to the assessment of damages. Again it is again convenient to consider the expert evidence chronologically, ending with the expert who examined Mr Zavodny most recently.
Dr Ronald Thomson
Dr Thomson opined in his report of 16 August 2016, in respect of Mr Zavodny’s left ankle and left shoulder injuries:
“These injuries and principally that related to the left ankle/foot have effectively destroyed his employment and his whole career and he is totally unfit for any form of physical occupation or social/domestic activity requiring normality at these parts.”
Dr Thomson opined Mr Zavodny was only employable, and for no more than 20 hours weekly, for sedentary or semi-sedentary work where he would be able to sit or stand and adjust his posture at will and with a lifting limit of 10 kilograms. These opinions were not expressly challenged in cross-examination.
Dr Fraser’s expression of opinion about Mr Zavodny’s capacity to work were varied. In his 2015 report he opined in response to two separate questions that on the one hand Mr Zavodny’s injuries had rendered him unable to work as a mariner since the accident, but on the other hand the injuries would not prevent him from being gainfully employed as a mariner or as an engineer henceforth. He explained in his second report that by this he had meant Mr Zavodny had been incapacitated for work as a mariner prior to the time of the first examination, but that from the time of examination onwards Mr Zavodny would not be prevented from being gainfully employed as a mariner or as an engineer.
Taken to task about this in cross-examination he accepted he was, in effect, saying that from the date of the accident to Dr Fraser’s first examination of Mr Zavodny on 10 December 2015 Mr Zavodny could not work because of his ankle injury, but as from 11 December 2015 his injuries would not prevent him from being gainfully employed as a mariner or an engineer. Dr Fraser did not take up the opportunity proffered in cross-examination to explain the foundation for concluding Mr Zavodny was fit to return to work. Nor did he proffer insight into how he reached the conclusion that the date of his first examination of Mr Zavodny just happened to coincide with the point in time in Mr Zavodny’s recovery when he went from being unable to work to being able to work.
It is likely Dr Fraser erred in his choice of words in the first report by indicating that Mr Zavodny’s injuries would not prevent him from being gainfully employed as a mariner or engineer from that time onwards. Rather than concede that error in cross-examination his answers boxed him into making the improbable assertion that the time that Mr Zavodny’s capacity to return to work changed just happened to be the date of the first examination. It was a position made all the less credible by his assertion elsewhere in the first report that Mr Zavodny’s prognosis was guarded and that it was unlikely further improvement would occur; that maximum medical improvement has been achieved; and that “the injuries suffered continued to limit his capacity for prolonged standing, walking, swimming and the use of flippers”.
Dr Fraser’s 2017 report asserted:
“Mr Zavodny’s current incapacity for work pertains more to a lack of available contract work and his age rather than the effects of the injuries suffered in the accident in question.”
The foundation for that assertion went unexplained in the report. In a subsequent conference diary note Dr Fraser acknowledged not having a note of being told there was a lack of available contract work but claimed he did not think he would have inserted such a thing in the report unless Mr Zavodny had told him “to that effect”. In cross-examination Dr Fraser acknowledged he had no memory of the conversation. Mr Zavodny emphatically rejected the suggestion he had told Dr Fraser there was a lack of available contract work. This, regrettably, seemed to be another instance in Dr Fraser’s reporting of him using unfounded or poorly chosen words in a way that happened to be unfavourable to Mr Zavodny’s position.
Towards the end of Dr Fraser’s cross-examination, after the above oddities had been exposed, he seemed to return to a less extreme position regarding Mr Zavodny’s capacity for future work. In his second report Dr Fraser addressed the question, “If you are of the opinion that the claimant will experience limitations in employment in the future, what types of employment do you think would be suitable?” Dr Fraser wrote:
“Mr Zavodny is capable of appropriate work in the charter industry and fishing industry, if such work were available to him.” (emphasis added)
When questioned about what he meant by “appropriate” work, he seemed to indicate he was referring to work that would avoid the movement that gives him difficulty because of his ankle, such as climbing on and off boats, limited ability to climb ladders and stairways, and move in and out of hatches. For example, he apparently felt Mr Zavodny would be capable of sitting behind the wheel of a boat and navigating. Dr Fraser acknowledged Mr Zavodny had explained to him how his ankle condition limits his ability to move about boats. He ultimately appeared to concede that what he was “really saying” was Mr Zavodny’s injury restricted him to jobs in the maritime industry that avoided having to move and climb about boats. By the time Dr Fraser completed his cross-examination I was left with the distinct impression that in formulating his opinion about Mr Zavodny’s capacity for work in the future, he had not really had any regard to the problems Mr Zavodny would have in climbing and moving about vessels at sea.
Ms Sanja Zeman
Ms Zeman, occupational therapist, acknowledged that marine engineering duties do require the adoption of more awkward and constrained positions, which would be contraindicated given Mr Zavodny’s residual range of movement deficit within the ankle impacting on sustained squatting. Despite this, she opined that Mr Zavodny continues to have an ongoing capacity for employment on a full-time basis as a ship’s captain with no loss of earning capacity associated with the subject accident. That opinion was not credible.
Ms Zeman reasoned that because Mr Zavodny’s only work capacity restrictions related to work tasks falling outside of the assessed medium work category, the roles of ship’s master and ship’s officer were suitable for him as the physical demands of those positions, according to an accident compensation corporation website, were classified as light to medium work. This classification method seemed to accentuate the capacity to lift without acknowledging the impairment likely on balance and manoeuvring on board a boat.
Ms Zeman’s balance test scored Mr Zavodny at 54 out of 56 which she described as being “all but normal”. Ms Zeman acknowledged in cross-examination that her testing of Mr Zavodny’s balance was necessarily in a static environment and not undertaken in an environment mirroring the movement of a vessel. She did emphasise, however, that there are aspects of the test which was administered which would inform consideration of an individual’s likely capacity for balance in a dynamic, as opposed to static, environment.
Ms Zeman’s opinion may have been influenced by her erroneous understanding that Mr Zavodny’s gym work included high intensity interval training. Mr Zavodny credibly denied telling her he did gym work of that kind. He explained he did not make reference to “high intensity interval training”. However on his account, which I accept, he did tell her of some of the exercises he did at the gym, for example floor exercises in which the knee is brought to the shoulder and another variant in which the knees and arms are raised together. He testified, “You do them in a series, you do them 10/15 seconds take a break”. Mr Zavodny suggested of the exercises that, if they were done fast and hard enough, they would be “high intensity interval training”.
It appears likely Ms Zeman conflated or misunderstood Mr Zavodny’s descriptions of those types of repetitive gym exercises in arriving at the apparent understanding that Mr Zavodny did high intensity interval training involving rigorous use of his legs when upright. In point of fact, the only reference in her notes to high intensity interval training or “HIIT” related specifically to his left shoulder capsule and said:
“Discussed that if he uses the arm outstretched at gym, yoga or HIIT class it can aggravate.”
This was not the only concerning aspect about the reliability of Ms Zeman’s evidence. In her diary note of 22 October 2019 she noted an ophthalmologist had recorded Mr Zavodny’s visual acuity in each eye as “6/60” and wrote:
“Thus, unless there had been some change in that condition, he would not have sufficient visual acuity to carry out work as a ship’s captain.”
Such an observation was adverse to Mr Zavodny’s case in that it effectively indicated Mr Zavodny would not, in any event, have been able to continue to work as a master.
Earlier in the same note she referred to the Australian Maritime Safety Authority Standards for the medical examination of seafarers and coastal pilots and its requisite figures for visual acuity. Visual acuity of 6/60 would not meet those requisites. What Ms Zeman did not mention in her file note is that the standards would allow Mr Zavodny’s visual acuity to be assessed with aided vision, that is by reference to corrected visual acuity. When wearing glasses Mr Zavodny’s visual acuity meets the requisite standards. No aspect of his vision would preclude his capacity to carry out his former calling were he otherwise fit to do so. This may have simply been an oversight or error by Ms Zeman which, like her error regarding the high intensity interval training, happened to support an opinion adverse to Mr Zavodny’s case.
However, even if only errors, those features of her evidence combined with another feature of her evidence to detract from the reliability of her opinions generally. In the course of cross-examination Ms Zeman was obviously reluctant to answer questions premised on facts she was asked to assume and instead wanted to argue about whether those facts were correct. For example, she was cross-examined about her diary note of 12 November 2019. It recorded that she had been shown photographs of the Azura and been asked to assume Mr Zavodny had acted as Master on a variety of occasions, namely:
“(a)Acted as Master of the vessel, taking it from Perth to Exmouth in about February 2015;
- Acted as Master of the vessel in a fishing competition in Perth from about 2 March 2015;
- Acted as Master of the vessel between 5 March 2014 [sic 2015] and 7 April 2014 [sic 2015];
- May have acted as Master of a similar vessel near Perth in April 2015;
- Seems to have participated in the Lucinda Light Game Fishing Tournament in about August 2015, probably as Master of the vessel;
- In January 2016 undertook a private charter as Master of a vessel, the details of which are unknown;
- In about March 2016 undertook a charter with Northern Conquest Charters, the details of which are unknown;
- In November or December of 2016 acting as Master of Azura, the vessel shown in the photograph, for something of the order of 10 days;
- In March 2017 acting as Master of the vessel Azura for two weeks including skippering the vessel in the Australian Junior Bill Fishing Tournament at Exmouth.”
On the assumption the defendants’ lawyers had asked Ms Zeman to make, that the plaintiff had acted in those capacities, she wrote:
“20. That shows the plaintiff is quite capable of acting as Master of a vessel in accordance with my opinion. He obviously has the functional capacity to do it because he is doing it. There is no reason why the plaintiff’s functional capacity would vary such that he can do that job at some times but not at others.
21. Accordingly, I remain of the view that the plaintiff has been capable of carrying out that work.”
There was an obvious difficulty with what Ms Zeman had been asked to assume by the defendants’ lawyers. To the extent there was evidence at trial about any of the above instances of Mr Zavodny acting as a Master of a vessel, it was to the effect that he had been unsuccessful in attempting to do so, in each instance, because of the way in which his injury interfered with his capacity to carry out the role. In cross-examination Ms Zeman was therefore asked to assume that Mr Zavodny had had difficulty with each of the occasions set out because he could not perform all of the relevant functions. She was asked if on that assumption she would have a different opinion in relation to Mr Zavodny’s capacity. Her surprising response was:
“No, I would not. And the reason I would not is that the evidence that I have seen clearly demonstrates the plaintiff performing in that role. One cannot say that having difficulty on one day or one occasion or five occasions even constitutes an inability to perform the role. He’s clearly been able to work as a ship’s Master at various times in various capacities following the subject accident, and has done so repeatedly be it for, you know, short contracts.”
It is unclear what Ms Zeman meant when she said, “the evidence that I have seen clearly demonstrates the plaintiff performing in that role”. It may have been implicit in what she had been asked to assume by the defendants’ legal representatives that he had performed the role of Master on the various occasions listed above. However, there is no “evidence” Ms Zeman would have seen that Mr Zavodny was successful in his multiple attempts to perform the role. The high point seems to be that she was told by Zavodny that he had, post-accident, begun to be selective in taking on contracts he felt he could manage. That does not equate to him telling her his attempts to perform such contracts were successful.
Ms Zeman continued with her reluctance to answer questions based on a different set of assumptions than the defendants’ legal representatives had put to her in the following exchange:
“[B]ut I’ve asked you to assume that he couldn’t perform the duties, not just that he did, and he got through it with pain or whatever, he could not perform the duties required of him to be a ship’s captain?---Well, if that’s the case, my question, which I guess is causing me to have some disagreement with that statement, is if he couldn’t perform the duties, why did he then act as a Master in 2014, again in 2015, again in 2016, on at least three or four occasions, and again in 2017? If one couldn’t perform the duties in 2014, I think it’s entirely reasonable to assume that one would not go back to trying to do so, not only on one occasion, but for several years subsequently.”
This was a disappointing response for a purportedly objective expert. From an objective viewpoint it is unremarkable and to his credit that Mr Zavodny had such a strong desire to reclaim his beloved career that he made many attempts to do so.
Cross-examination of Ms Zeman progressed to the point where, on the assumptions she had earlier been asked to make by counsel for Mr Zavodny, she eventually conceded that would change her opinion as to Mr Zavodny’s vocational capacity to return to his former work. The upshot is that I do not regard her documented opinions about Mr Zavodny’s functional capacity and employability as reliable. The unreliability of her opinion as to his functional capacity has the consequence I am unprepared to place weight on her assessment of his care needs.
Dr John Maguire
Dr Maguire opined Mr Zavodny’s prognosis is poor and that he “will not return to the workforce in employment for which he is reasonably trained and this will be permanent”. This opinion was not expressly challenged in cross-examination.
Dr Chalk, psychiatrist, opined Mr Zavodny did not have any psychiatric impairment precluding him from returning to his previous occupation if he could do so physically, and that a return to some form of gainful employment within his physical limitations would be likely to assist his psychiatric state.
In the diary note of his 2019 conference, Dr Chalk expressed the view that there is no psychiatric reason why Mr Zavodny would not be able to carry out his work as a ship’s captain. It appeared from Dr Chalk’s responses to questioning under cross-examination that he did not think Mr Zavodny suffered from difficulties with focus, attention and concentration to the extent that they would compromise his capacity to work as a ship’s captain. Unfortunately, it appeared from Dr Chalk’s diary note of the conference of October 2019 that he was of the erroneous understanding Mr Zavodny was only working part-time because of the availability of work. Curiously another expert of the defendants, Mr Fraser, held a similar misunderstanding that there was a lack of available work. This misunderstanding was not pursued with Dr Chalk in his oral evidence, but there was no evidence that Mr Zavodny’s failure to return to full-time work was because of the unavailability of such work. It is difficult to avoid the impression that Dr Chalk’s misunderstanding in that regard may have led him to express an unduly robust opinion about Mr Zavodny’s ability to return to his former field of employment.
Mr Mark Scalia
Mr Scalia, occupational therapist, opined Mr Zavodny is unable to work as a ship’s master as a result of the subject accident, not being able to manage the critical job demands of that occupation because of his left lower limb impairment. In that context, Mr Scalia referred to reduced standing tolerance, reduced balance, chronic pain, reduced concentration, increased fatigue and difficulty managing heavier physical work pain. He also noted difficulty in working with tools or in confined spaces, having reduced capacity to deal with emergency situations at sea and being unsuited to work in stormy or rough conditions at sea.
Mr Scalia noted Mr Zavodny has limited transferable skills and experience outside of the maritime industry and is no longer suited to any heavier manual labour. While Mr Scalia detected some slight improvement in functional capacity in his further assessment of October 2019, he continued to opine that Mr Zavodny remains unsuited to his former work and has been forced into early retirement. I regard Mr Scalia’s opinions regarding Mr Zavodny’s employability as reliable.
Dr Caniato opined in his first report that Mr Zavodny’s adjustment disorder was a significant and major impairment to him gaining employment. He explained that psychologically Mr Zavodny does not have the capacity to work as a boat captain, “specifically with regard to making complicated decisions or operating a commercial vessel”. His second report after the examination of 7 November 2019 did not suggest any variation to that opinion. In particular it alluded to Mr Zavodny’s impaired cognition, noting he had significant troubles with timing, memory and ordering of events.
None of the expert evidence causes me to doubt Mr Zavodny’s evidence as to how the multi-dimensional adverse consequences for him on board vessels preclude him from effectively performing paid seafaring work on vessels. To the contrary, the expert evidence that is reliable supports that conclusion
Mr Zavodny convincingly rejected the suggestion that regardless of the accident he would, as time passed, have suffered an erosion of his capacity to perform his onboard tasks, particularly heavier and more physically burdensome tasks. He explained if he had not had the accident, he would still be able to do everything he did prior to the accident.
Mr Zavodny convincingly rejected the suggestion that he could continue with tasks associated with being a master or skipper in control of a vessel and, to the extent some of those tasks were heavier, he could simply delegate them to a deckhand. He explained a deckhand’s job was to wash the boat and keep it clean and tidy. He explained a crewman would not be trained to do the various engineering and electronic maintenance tasks for which the master is responsible.
It is to be appreciated the role of master on a game fishing vessel is multi-facetted. In contrast to the role of a Captain of a larger vessel, such as a cruise ship, it involves many different physical tasks, as is apparent from the comprehensive list of tasks set out in Mr Zavodny’s quantum statement. Many of those tasks are of a kind which only the master would have the expertise to perform. Further, the range of those tasks and the small number of crew in Mr Zavodny’s line of work, makes it unrealistic to expect the tasks could be performed by other crew members under close instruction and supervision by the master.
I readily conclude that in consequence of the injuries caused by the accident Mr Zavodny has been rendered permanently unfit for paid seafaring work as a master or crew member on vessels which he hitherto had the expertise to serve on.
To remove doubt, I would reach the same conclusion even if there were no shoulder injury, or psychiatric injury for that matter, such is the determinative impact of the ankle injury upon Mr Zavodny’s physical capacity for paid seafaring work.
The general damages assessment process is regulated by the Civil Liability Act 2003 (Qld) (“the Act”) and Civil Liability Regulation 2003 (“the Regulation”). Pursuant to s 51 of the Act general damages includes damages for pain and suffering, loss of amenities of life and disfigurement. Section 62 requires general damages to be calculated by reference to the general damages provisions prescribed in the Regulation. Those provisions of the Regulation, at s 7 and sch 7, require reference to an injury scale value (“ISV”). Section 61 of the Act requires the court to assess the ISV on a scale of 0 to 100. That assessment requires reference to the Regulation and its schedules.
Where, as here, there are multiple injuries, s 3 of sch 3 to the Regulation requires general damages to be assessed by reference to the range of ISVs for the dominant injury. However, s 9 of sch 3 permits that assessment to have regard to other relevant matters, such as the range for the other injuries. Section 4 of sch 3 permits an uplift in the assessment beyond the maximum dominant ISV if it is inadequate to reflect the level of impact, however the uplift should rarely be more than 25 per cent and if it is, detailed reasons must be given.
In assessing the ISV s 10 of sch 3 provides the extent of whole person impairment (“WPI”) is a relevant consideration. Schedule 8 provides WPI means a percentage estimate of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform the activities of daily living other than employment. The Regulation’s sch 4 provides ranges of ISVs and allows regard to be had to WPI in determining where within the relevant range an ISV should be assessed as falling.
For psychiatric injury, it is necessary to ascertain the psychiatric impairment rating scale (“PIRS”) rating by reference to sch 6 of the Regulation to in turn relate it to sch 4 to determine the relevant ISV.
Various experts advanced opinions as to WPI. In Dr Fraser’s first report he opined the left shoulder injury had not given rise to any measureable impairment of whole person function and in respect of the left ankle allowed a 4 per cent WPI plus a further 1 per cent attributable to scarring, giving a combined WPI of 5 per cent. In his 2017 report he considered there was now no quantifiable impairment of the left ankle either, leaving a WPI of 1 per cent only, pertaining to the skin grafting. The conclusions I have already reached are obviously at odds with Dr Fraser’s opinion that, save for scarring, there is no continuing impairment associated with the shoulder injury and ankle injury caused by the accident. I accordingly place no weight on his assessments.
Dr Thomson opined that Mr Zavodny’s whole person impairment (“WPI”) was 25 per cent. He calculated specific WPIs as:
Left lower extremity (ankle/foot) – 10 per cent
Left upper extremity (shoulder) – 8 per cent
Skin (scarring) – 9 per cent.
He did not consider there was any pre-existing WPI.
Dr Maguire opined Mr Zavodny had suffered a 17 per cent WPI as a result of his injuries. In respect of the left ankle he noted:
Loss of saphenous nerve - femoral sensory loss – 1 per cent WPI;
Skin classes class 1 defect – 4 per cent WPI;
Ankle loss of range of motion – loss of extension, mild – 3 per cent WPI;
Loss of flexion, mild – 3 per cent WPI.
In respect of the left shoulder he assessed varying degrees of impairment converting to 6 per cent WPI.
Associate Professor Lewandowski assessed Mr Zavodny’s ankle impairment as rating a WPI of 9 per cent. He assigned the following specific WPIs:
Skin scarring – 5 per cent
Medial nerve sensory abnormality – 2 per cent
Lateral nerve sensory abnormality – 2 per cent.
It is to be appreciated that he confined his assessment to his area of expertise so that it related only to the ankle’s scarring and sensory abnormality and not the additional ankle defects taken into account by Dr Maguire and Dr Thomson. On any view of it the WPI for the ankle only would be materially greater than 10 per cent.
Turning to the psychiatrists, Dr Chalk assessed a WPI in respect of Mr Zavodny’s chronic adjustment disorder of 4 per cent. He gave the following psychiatric impairment rating scale scores:
Self-care and personal hygiene – 2
Social and recreational activities – 2
Travel – 1
Social functioning – 1
Concentration, persistence and pace – 2
Adaptation – 1.
Dr Chalk’s assessment of adaptation appears, for reasons already explained, to have been influenced by his misunderstanding that Mr Zavodny had been unable to return to full-time work because of its unavailability. This has likely resulted in an overly conservative assessment of Mr Zavodny’s adaptation.
On the other hand, Dr Caniato assessed a substantially higher level of impairment. He assessed Mr Zavodny’s adjustment disorder with depressed mood as rating a WPI of 15 per cent. He assigned the following psychiatric impairment rating scale scores:
Self-care and personal hygiene – 1
Social and recreational activities – 2
Travel – 2
Social functioning – 3
Concentration, persistence and pace – 3
Adaptation – 4.
Some of those assessments are markedly higher than Dr Chalk’s. Some of the factual foundation for the assessment categories of social functioning and concentration, persistence and pace, apparently based on what Mr Zavodny told Dr Caniato, has not been established by the evidence of Mr Zavodny. While Dr Caniato’s rating of 3 for the latter category is arguably justified by the evidence, his rating of 3 for social functioning is not.
As to adaptation it was put to Dr Caniato in cross-examination that if in fact physical impairments rather than psychiatric impairments were preventing Mr Zavodny from returning to work, then adaptation should be assessed, as Dr Chalk assessed it, as class 1. Dr Caniato disagreed, explaining that whether physical impairment was affecting Mr Zavodny was outside his area of expertise and his role was only to measure the impairment he would attribute to Mr Zavodny’s level of psychiatric symptomology. He continued:
“If I assume this person has an adjustment disorder, and I assume that he has certain symptoms, let’s say, problems with memory, attention, focus, concentration, then I have to translate those into what effect I believe it would have on adaptation. So if I believe he can’t work because of his adjustment disorder, whether he also can’t work because of his physical injury is irrelevant to me. I’m just measuring the level of effect on his employability from a psychiatric illness.”
I accept the physical injuries are in this context irrelevant to assessment of adaptation to psychiatric injury. There was no suggestion by Mr Zavodny or Mr Thomson that Mr Zavodny’s attempted returns to work were unsuccessful because of his psychiatric condition but the physical thwarting of his attempts is likely to have diverted focus from consideration of whether he still had the concentration and intellectual responsiveness necessary to perform his pre-injury work. I accept the adjustment disorder does interfere with Mr Zavodny’s memory, attention, focus and concentration, indeed he exhibited some signs of those problems in the course of his testimony. While those problems would likely detract from the concentration and intellectual responsiveness necessary to master a vessel they are unlikely to preclude him, assuming he were physically fit to work at sea, from working in the comparably less intellectually demanding role of a crew member. This suggests Dr Caniato’s assessment of adaptation as class 4 is too high.
In the circumstances I favour class ratings falling roughly between the respective class ratings of the experts, with the median class score, per s 6 sch 5, being 2 and the total of the class numbers, per s 4 sch 5, being 12. The conversion table in s 7 sch 5 would therefore indicate a PIRS of 6 per cent.
The parties rightly agree the dominant injury is the ankle injury. The defendants contend that injury falls under item 143 of sch 4 of the Regulation, “Moderate ankle injury”, which has an ISV range of 6 to 10. However, it is a more serious injury than the examples given for that item.
Mr Zavodny’s ankle injury coincides, as was submitted on his behalf, with the level of injury indicated by the examples in item 142, “Serious ankle injury”, which has an ISV range of 11 to 20. To adopt the language of those examples, it is “an injury requiring a long period of treatment” and “the ability to walk is severely limited on a permanent basis”. It will be recalled Mr Zavodny underwent a prolonged period of treatment after the accident, his recovery having been marred by osteomyelitis, and the need to treat it, including with 60 hyperbaric sessions. Further, the pain to his ankle is aggravated by walking and he cannot walk on flat terrain for longer than 15 minutes. This alone is a permanent severe limitation on his ability to walk. In addition, he has added difficulty in traversing inclines, declines and uneven surfaces, including soft sand, his ankle feels unstable, he experiences difficulty with balance and he sometimes needs to use a walking stick to walk.
Item 142 includes four examples of factors affecting ISV assessment, two of which are relevant here, namely, “unsightly scarring” and “a requirement for modified footwear”. The photographic evidence confirms unsightly scarring to the ankle and Mr Zavodny has to use orthotics.
Item 142 provides an ISV at or near the bottom of the range will be appropriate if there is a WPI for the injury of 10 per cent. As earlier discussed, the WPI for the ankle injury would be materially greater than 10 per cent. Item 142 provides an ISV at or near the top of the range will be appropriate if a major tendon controlling foot or ankle movement is severed. That is not a consideration here. For the ankle injury in isolation I assess an ISV slightly above the mid-range of about 16 or 17.
However, it will be recalled s 9 of sch 3 permits the assessment to have regard to other relevant matters, such as the range for the other injuries. I have found the shoulder injury is a grade 2 AC joint injury, which has persisted with variable intensity. It is uncertain whether shoulder surgery would improve Mr Zavodny’s symptoms. The shoulder injury appears to be somewhat more serious than a “Minor shoulder injury”, which is item 98 in sch 4 and attracts an ISV of 0 to 5. It likely falls at the low end of item 97, “Moderate shoulder injury”, which has an ISV range of 6 to 15. When account is also taken of the expert opinions regarding the WPI for the shoulder and the terms of item 97 regarding WPIs, the ISV for the shoulder in isolation would be around 6 or 7.
I have found the appropriate PIRS rating for the psychiatric injury is 6 per cent. This corresponds in sch 4 to item 12, “Moderate mental disorder”, an example of which is in the range of a 4 to 10 per cent PIRS rating. That item attracts an ISV of 2 to 10. Giving due weight to the expert opinions the psychiatric injury in isolation would attract an ISV of about 4 or 5.
The extent in combination of the injuries additional to the dominant injury is significant, involving ISV’s in their own right of 6 or 7 and 4 or 5. They warrant a material uplift on the ISV of 16 or 17 for the ankle in isolation. In my judgment they should uplift the ISV beyond its maximum of 20 to an ISV of 25.
The defendants conceded that scarring should be assessed as falling within item 155.3 sch 4, “Moderate scarring of a part of the body other than the face”, which has an ISV range of 4 to 8. The presence of unsightly scarring was a relevant example in the assessment of item 142 and not specifically raised by Mr Zavodny as a separate item but in any event the defendants’ concession fortifies my conclusion regarding the above uplift.
The application of table 6 of sch 7 of the Regulation to an ISV of 25 gives rise to a general damages calculation of (base amount $36,400) + ((25 – 20) x $2,510 = $12,550) = $48,950. I will award general damages in the amount of $48,950.
Assessing loss of earnings
In making an award of damages for loss of earnings the maximum award a Court may make is limited by s 54 Civil Liability Act 2003 (Qld) to an amount equal to the present value of three times average weekly earnings as published by the Government Statistician per week for each of the weeks of the period of loss of earnings. That maximum is not going to be reached in the present case.
Schedule 2 of the Act defines loss of earnings as relating to both past and future loss in these terms:
“loss of earnings means –
past economic loss due to loss of earnings or the deprivation of impairment of earning capacity; and
future economic loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity”
The Act therefore contemplates that either of the value of the loss of earnings or the value of lost earning capacity is a measure of loss of earnings.
As to the calculation of loss, s 55 of the Act relevantly provides:
“55 When earnings can not be precisely calculated
This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
If the court awards damages, the court must state the assumptions on which the award is based and the methodology used to arrive at the award. …”
In the present case loss of earnings cannot be “precisely” calculated by reference to a defined weekly loss. However, calculation of Mr Zavodny’s likely weekly loss with discounting for contingencies is a logical method to adopt in the circumstances of this case. It is a methodology which will readily expose the assumptions on which the award is based. In taking this approach, for both past and future loss, I am conscious that loss of earnings as the Act defines it may be either due to loss of earnings or the loss of prospective earning capacity. In the present case approximation of the former happens to be the best available indicator of the latter.
Past loss of earnings
Mr Zavodny was 59 at the time of the accident and is now 65. I readily conclude he would in the normal course have continued in his beloved field of employment until now, a period of 288 weeks since the accident.
In reaching that conclusion I do not overlook that Mr Zavodny from time to time had experienced significant physical ailments. In cross-examination Mr Zavodny was taken to a number of historical records of medical practitioners he had consulted in the past to illustrate he had a long history of back pain, albeit not one persisting by the era of the accident. For instance, when he attended Dr Mudd on 14 October 2009 for a deterioration in lower back pain it was noted the back pain had “been reasonably good” in the two years since the doctor had last seen him. On 16 October 2009 the record of Dr Aubrey noted his back was much improved and that there was a discussion about a spinal X-ray which showed displaced narrowing. On 3 May 2010 Dr Herington recorded an attendance in connection with back pain and lumbar disc prolapse. In a letter of 5 January 2011 Dr Baker made reference to Mr Zavodny having a hernia for which was to undergo treatment and noted that Mr Zavodny had a long history of back pain. In October 2011 Mr Zavodny saw Dr Emery in connection with neck pain progressing to headaches which had worsened after a motor vehicle accident four months earlier. That problem was treated with a CT guided injection. Further to this, it will be recalled X-rays had detected some shoulder degeneration.
However, such evidence as was adduced about Mr Zavodny’s physical problems unrelated to the accident does not suggest they were of a kind likely destined to shorten Mr Zavodny’s working life. It is tolerably clear that their effects came and went, with Mr Zavodny seeking medical assistance as necessary. Mr Zavodny was clearly committed to maintaining his physical fitness, a commitment consistent with his obviously strong desire to continue working in his beloved field of work. That work may in the future have occasionally been interrupted by reason of a physical ailment but like other potential vicissitudes, that possibility is adequately catered for by an allowance for contingencies in awarding damages for both past and future loss of earnings.
I have found that the injuries caused by the accident left Mr Zavodny permanently unfit for paid seafaring work as a master or crew member on vessels which he hitherto had the expertise to serve on. His injuries, and the consequences I have found them to have, also preclude the pursuit of other physically demanding work. He holds no other form of expertise or qualifications for work in another field. Given his age and education, qualifying afresh for and being employed in paid work in a non-maritime sedentary occupation was and is not a realistic option. The high point of any lingering minor ongoing capacity for paid work has been illustrated by his capacity to perform casual fishery monitoring work at the Lucinda boat ramp.
In considering loss of earnings it is instructive to take into account Mr Zavodny’s past earnings as a contractor as well as his likely earnings in the employed work he had planned to take up in Western Australia.
As much as Mr Zavodny loved his work lifestyle, contracting as a game fishing vessel master, the evidence of his past earnings in that field does not suggest it was particularly lucrative. In the 2013/14 financial year his net income was $40,985, or $788.17 net per week. In the ten weeks pre-accident of the 2014/15 financial year his net income was $9,915. This would not have exceeded the taxable income threshold but for the sake of the exercise, applying notional tax, this likely equated to $811 net per week. The information from those two financial years therefore suggests his average net weekly income as a contractor was about $800 net per week.
It was established in cross-examination of Mr Zavodny on his bank statements for the six month period 21 May 2014 to 20 November 2014 that his only receipt of payments in that period for work performed were recorded as:
- 4 June 2014 direct credit of $7,580 for April May fees for Elite Motor Yachts
- 3 July 2014 direct credit of $6,020 for June invoice for Elite Motor Yachts
- 5 September 2014 direct credit of $3,895.11 for NC Charters.
This prompted a suggestion in cross-examination that his contracting work must have substantially fallen away in the lead-up to the accident. Mr Zavodny explained his payments from Northern Conquest Charters were sometimes delayed by up to three to four months, the implication being that the period of the bank statements put into evidence would not necessarily have captured all payments from Northern Conquest Charters for work he had performed in the months leading up to the accident. Further, he explained that he had ceased working with Elite Motor Yachts prior to the accident. He was quite emphatic that he did not lack for contract work.
Some of Mr Zavodny’s answers in cross-examination intimated that he eased off taking on contract work in anticipation of having to go to Western Australia at the end of 2014. This likely explains why he only asserts he would have earned $8,999.90 or $642.85 net per week in the 14 week period between the date of the accident and cessation of work in late 2014, preparatory to taking up work in Western Australia from 1 January 2015.
The critical issue is whether a higher net weekly figure than Mr Zavodny used to earn ought be favoured on the basis he would, but for the accident, have taken up more lucrative work as an employee in Western Australia from the beginning of 2015.
It will be recalled Mr Zavodny’s evidence was that prior to the accident he was planning to take up a job offer from Mr Travis in Western Australia. On Mr Zavodny’s account Mr Travis, who died on 6 June 2017, had made him a verbal offer of employment in May 2013 which Mr Zavodny declined because he wanted to remain in the Townsville region. It was in mid-2014, when he learnt his sister’s husband was terminally ill, that he informed Mr Travis of his preparedness to relocate to Perth. Of the offer Mr Travis then made, Mr Zavodny’s quantum statement asserted:
“Mr Travis made me a verbal offer of employment to manage his fishing operations on a full-time basis which was to commence in January 2015. Mr Travis offered me a gross annual salary of $60,000 ($48,953 net) in addition to a company car, accommodation and utilities.”
According to Mr Zavodny’s quantum statement, Mr Travis’s offer of 2013 was on similar terms except that the gross annual salary was to be $52,000.
There was also a subsequent offer made, of largely similar employment, by Mr Thomson’s letter of 15 December 2016. It will be recalled Mr Travis and Mr Thomson had shared interests. That offer, “to run and manage the operations of Azura and Alura on a permanent basis”, proposed “a gross wage of $65,000 per annum, plus vehicle and accommodation”. That is, it offered a higher wage than offered in 2014 but did not include utilities. It foreshadowed “a salary contract for 3 years with an option of 2 years”. A gross wage of $65,000 equates to a net wage of $52,328 or $1006.31 net per week.
Returning to the pre-accident offer of mid-2014, its foreshadowed net income would have equated to about $941 net a week, which was better than the $800 net a week Mr Zavodny had been earning. The offer of car, accommodation and utilities made it even more financially beneficial than his contracting work. Furthermore, it presented a welcome opportunity to live closer to his sister.
The defendants’ counsel sought to resist the conclusion Mr Zavodny would have taken up employment in Western Australia, emphasising occasions in the history of this case in which Mr Zavodny had not mentioned the offer of mid-2014 and his pre-accident intention to move to Western Australia. For instance, an attempt was made in cross-examination to make something of the fact that Mr Zavodny had not mentioned in speaking with the occupational therapists in the case that he had intended to take up full-time employment in Western Australia prior to his accident. In that context the absence of noting of information about the entity he planned to work for, as distinct from the nature of his work tasks, presents as a matter of neutral significance. Perhaps, as Mr Zavodny posited, it was not the focus of questions asked. Mr Zavodny did not present as a sophisticated thinker who was likely to have controlled the direction of expert consultations.
Of potentially greater significance, in Mr Zavodny’s “Statement of Damages Claimed”, a document prepared by his solicitor in August 2016, it is asserted that had “it not been for the injuries he sustained in the accident, the Claimant would have continued in his self-employment as a vessel master”. That assertion is part of a passage quantifying loss of earnings. It is regurgitated again in a similar context in two subsequent statements of loss and damage filed by the solicitor but had fallen away by the time of the further updated statement of loss and damage filed in November 2018. Despite the gravity of the statement of damages claimed prepared by the solicitor for use at the compulsory conference and the earlier statements of loss and damage filed by the solicitor in the proceeding, there is every prospect the drafting solicitor made assumptions about future earnings influenced by records of past work and earnings rather than properly targeted inquiry of the client. Supporting that prospect, it is noteworthy none of those documents refer to failed attempts at a return to work having occurred in Western Australia or the further offer of employment there in 2016, yet those events did happen.
That the content of such documents may have been more influenced by the assumptions of its drafter than targeted questioning of the client is also supported by other indicators of such a dynamic elsewhere in the case. For instance, the quantum statement is littered with bland assertions of what is claimed without articulation of facts explaining whether and why the claimed loss or cost was or will be incurred. In some instances, such facts are unhelpfully sought to be proved by generically adopting facts told to the experts rather than the drafter having the client actually communicate the facts first hand in his quantum statement.
The argument in connection with the earlier failures to correctly state the pre-accident intention was that Mr Zavodny’s evidence of his pre-accident intention ought not be given weight because of the absence of contemporaneous evidentiary support for the existence of that intention. On one view the argument went so far as to argue Mr Zavodny’s evidence of his pre-accident intention was inadmissible. I reject such an argument. We are not here concerned with construing a document or agreement on which a party subsequently seeks to impose evidence of their subjective intention. In personal injuries cases when assessing future loss the trial judge is logically entitled to have regard to any evidence which is relevant to and probative of the course which the plaintiff’s income earning life would likely have taken but for the injury. A plaintiff’s direct evidence of what his or her future work or career plans and aspirations were is a form of such evidence and thus admissible. The weight a trial judge puts on such evidence will depend on many variables, including whether it is consistent or inconsistent with other relevant direct and circumstantial evidence.
In the circumstances of this case I readily give weight to Mr Zavodny’s evidence of his pre-accident intention to take up employed work in Western Australia. He was a credible witness and I believed his evidence on the point. I was fortified in concluding that evidence was reliable by the other evidence relating to him working in Western Australia. The evidence of his repeated post-accident attempts to work in Western Australia beginning from early 2015 and the clear evidence of the further offer to work there in 2016 are all consistent with his evidence of what his pre-accident intention had been. The unchallenged evidence that his sister’s husband was known to be terminally ill in Western Australia prior to the accident also lent the ring of truth to Mr Zavodny’s evidence that taking up the 2014 offer of employment at the outset of 2015 had the advantage of allowing him to be closer to his sister to support her.
I note for completeness that in advancing the above argument the defendants’ counsel even sought to make something of Mr Zavodny having told a psychiatrist he was “not as close” to his sister “since the injury”. It is not apparent how that supports the argument he had not intended to move to Western Australia before being injured. Actually, it implicitly indicates that his injuries have affected his hitherto close relationship with his sister.
I accept that as at the time of the accident Mr Zavodny had been offered and was intending to commence employed work in Western Australia at the start of 2015.
Mr Thomson’s further offer of December 2016 provides powerful evidence that Mr Zavodny could have continued to be employed in such work, on a slightly higher income and similarly favourable terms, to the present. I find he likely would have. I am fortified in reaching that view by the consideration that he would have been in his 60’s, looking to safeguard his future financial security and grateful for a continued chance to earn a better and more consistent income than he could as a contractor.
As discussed earlier, there would have been a 15 week interruption to Mr Zavodny’s income earning capacity from 23 October 2017 to 5 February 2018, in connection with his treatment for and recovery from leukaemia.
I have already canvassed the likely earnings at various stages to the present. But for the accident Mr Zavodny’s likely net wage earnings would have been:
Number of weeks
Net per week
10.09.14 – 15.09.14
01.01.15 – 31.12.16
01.01.17 – 22.10.17
05.02.18 – 13.03.20
Of course, potential vicissitudes in Mr Zavodny’s likely course of future employment included him returning to contracting if he lost his employed work or resigned, for instance because of the pull of the lifestyle freedom of contracting. Further, if that occurred, he may have taken some time to regain the same rate of contracting work he had hitherto enjoyed. So, while I am satisfied Mr Zavodny’s earning capacity and loss of earnings from the start of 2015 to the present is reasonably reflected in his likely earnings in Western Australia in that period, I will temper my assessment by 10 per cent to allow for such contingencies. This would result in the above forecast total likely net wage earnings being adjusted down to $233,359.82.
Mr Zavodny’s quantum statement disclosed that as of 8 November 2019 he had earned $26,790.57 net since the accident, evidently related to his work at the Lucinda boat ramp. That figure apportioned over the 255 weeks to then since the accident (not including the 15 week leukaemia related period) suggests a weekly net figure of $105.06. By now that suggests a likely total net earned since the accident of $28,681.38. I would deduct that amount from the above total likely net wage earnings but for the accident, in assessing the award for Mr Zavodny’s past loss of earnings. That would give an adjusted net wage total of ($233,359.82 - $28,681.38 =) $204,678.44.
It will be recalled a company car, accommodation and utilities were included as part of the employment offer of mid-2014, whereas the employment offer of December 2016 alluded to a vehicle and accommodation but not utilities. These benefits were reflective of Mr Zavodny’s earning capacity. It is logical and convenient to include the value of their loss in the award for Mr Zavodny’s past loss of earnings.
Mr Kain Elsmore, chartered accountant of Vincents, engaged for Mr Zavodny, provided a forensic accountant’s report. Mr Elsmore’s report set out the values he assessed in respect of the company car, accommodation and utilities that Mr Zavodny would have had the benefit of by virtue of his employment as proposed by Mr Travis. Those values were expressed as the “after-tax weekly value”, being the actual cash value of the benefits Mr Zavodny would have received, and the “pre-tax weekly earnings required”, being the level of pre-tax earnings he would have needed to earn to fund the benefits from his own after-tax income. Those valuations were:
After-Tax Weekly Value
Pre-Tax Weekly Earnings required
$ 64.57 
It may be observed immediately that the $41 component of that total ought not be considered from 1 January 2017, the point from which I have assessed the likely net wage earnings based on the employment offer of December 2016 – an offer which involved a higher wage but did not include utilities.
In arriving at his assessments Mr Elsmore was invited to assume certain facts in his letter of instructions. In respect of the vehicle he was asked to assume the vehicle would be a Toyota Hilux utility, that Mr Zavodny would not have maintained a personal vehicle and that he would have undertaken 225 kilometres of private travel per week. They seem to be unduly generous assumptions regarding an employee in maritime work. Mr Zavodny gave no evidence of any of these assumed matters except that in laying claim to the values assessed by Mr Elsmore, his quantum statement asserts, “I repeat and rely upon the contents of the forensic accountant’s report by Vincents.” Use of the phrase “repeat and rely upon” does not constitute evidence of the factual truth of the matters Mr Elsmore was asked to assume for the purpose of providing his opinion. Making matters even vaguer, Mr Elsmore assumed for the purpose of valuing accommodation that the accommodation would have been a two-bedroom property, but he was not actually asked to assume that and there is no evidence that the accommodation was to be a two-bedroom property. The accommodation may well have been at the home of his employer and aboard boats.
In a similar vein, the reference to “utilities” in the offer was not the subject of any further explanation. During his testimony Mr Zavodny explained the above reference to the word “utilities” was not interpretive and was actually the word used by Mr Travis in making the offer. Mr Elsmore assumed for the purpose of his assessment that the utilities would have captured household expenditure on domestic fuel and power. He used the Australian Bureau of Statistics household expenditure survey results to source an average weekly household expenditure on domestic fuel and power of $41 per week.
These vagaries do not render Mr Elsmore’s evidence irrelevant, for it equips the court with some understanding of values, albeit based on what Mr Elsmore was valuing. I infer that the benefits would not have been as great as those which Mr Elsmore was valuing. Plainly the accommodation, vehicle and payment of utilities Mr Zavodny would have received were material benefits which ought be considered in determining his award for past economic loss. The evidence of their worth may have been overestimated by Mr Elsmore but they obviously had material worth. Fairness to the plaintiff dictates such worth should not be wholly ignored because the evidence of its quantum had flaws. The proper approach was described by Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd as follows:
“The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J went so far as to say that the “assessment of damages … does sometimes, of necessity, involve what is guesswork rather than estimation”. Where precise evidence is not available the court must do the best it can do.”
Nonetheless, the plaintiff bears the onus of proof. If estimates are to be made about matters the plaintiff could have proved more clearly, such estimates ought be conservative. If that in fact results in under compensation a plaintiff who has failed to provide evidence to support a more adequate assessment has no ground to complain.
Taking a conservative approach, I infer the likely after tax value of the benefits would have been in the order of 50 per cent less than the figures calculated by Mr Elsmore. For this reason, and to make some additional other allowance for contingencies, I would discount Mr Elsmore’s figures by 60 per cent.
That is, I would adopt after tax weekly values of $94 for a vehicle, $140 for accommodation and $16.40 for utilities. That would give an after tax total weekly value of $250.40 up to 2017 and $234 from 2017 (when payment of utilities was not included).
This would give rise to the following totals:
Number of weeks
After tax weekly value
01.01.15 – 31.12.16
01.01.17 – 22.10.17
05.02.18 – 13.03.20
The earlier adjusted total for net wages plus the above total for the after tax value of the vehicle, accommodation and utilities gives rise to a total of ($204,678.44 + $61,375.60 =) $266,054.04. In the circumstances this total provides the most reliable indicator of the value of Mr Zavodny’s past loss of earning capacity in consequence of the accident. I will award $266,054.04 for past loss of earnings.
Past loss of superannuation
Mr Zavodny does not claim past loss of superannuation for 2014, when he was a contractor. He claims lost superannuation of 9.5 per cent from 2015, that being the percentage of his wage which his employer in Western Australia would have been obliged to pay. The percentage is calculable upon gross income, not net. The claim is reasonable in light of my earlier finding regarding his likely employment in Western Australia.
Mr Zavodny’s gross annual salary would likely have been $60,000, or $1,153.85 gross per week, during 2015 and 2016. That would have resulted in an employer superannuation contribution per week of $109.62. From 2017 his gross annual salary would likely have been $65,000, or $1,250 gross per week. That would have resulted in an employer superannuation contribution per week of $118.75.
That would give rise to the following past lost superannuation totals:
Number of weeks
Weekly employer superannuation contribution
01.01.15 – 31.12.16
01.01.17 – 22.10.17
05.02.18 – 13.03.20
Less 10% for contingencies
I will award an amount of $26,398.56 for past lost superannuation.
Future loss of earnings
The assessment of future loss of earnings requires consideration of when Mr Zavodny would likely retire. Counsel for the plaintiff contend he should be compensated for lost income to at least age 70 with an additional component with increased contingencies to age 75. Counsel for the defendants contend for an allowance for future economic loss only until the age of 70.
Mr Zavodny’s quantum statement asserts he had intended to work full-time as a vessel master until he was at least 75 years of age. He told Ms Zeman that he planned to travel with his sister in his retirement. The point was made in cross-examination that he would therefore have to retire at an age while he could still travel. However, Mr Zavodny explained he anticipated he would still continue to be fishing and be with his sister. He explained he did not anticipate he would be doing overseas travel with his sister. This exchange left the impression Mr Zavodny would have likely preferred the flexibility of contract work rather than work as an employee in his latter working years, so as to better juggle work with travel with his sister.
Mr Zavodny is 65. He would be eligible for the old age pension from age 66. I accept his great love of maritime work at sea would have seen him continuing to work full time in that field until age 70. While he has experienced various physical ailments in the past he valued the importance of keeping fit and I infer he would likely have remained sufficiently physically able for such work into his seventies. That said, the evidence led at trial showed work as a vessel master is physically demanding. As much as Mr Zavodny valued physical fitness it is likely the toll of those demands on his aging body would have raised the appeal of a return to contract work as he aged, because its flexibility would better accommodate a scaling back in workload to cope with its inherent demands once he entered his seventies. While the probability is that he would have continued to work in his favoured field until turning 75 my conclusion is that would have scaled back the volume of work he was doing after he turned 70, no longer working full time throughout the year.
The defendants also emphasised in closing submissions that Mr Zavodny told Ms Zeman he had planned to gradually decrease marine engineering work “as his physical capacity declined with the aging process”. That he had such a plan is consistent with my conclusion above that he would have scaled back his workload gradually.
I have accepted Mr Zavodny would have remained in work as a full-time employee in Western Australia to the present. However, it is unclear how long he would have persisted in that less flexible environment or how long such employed work would have remained available to him. Moreover, Mr Zavodny’s recent history of employment prior to the accident suggests he did enjoy the lifestyle freedom of contract work. It is also work which would better accommodate a gradual transition from full-time to more sporadic work, eventually phasing into complete retirement by age 75.
The best evidence of how long full-time work as an employee would have been available to Mr Zavodny is that the offer of 15 December 2016 contemplated three years plus an option of a further two years of employment, which suggests such work would likely have been available to him until the end of 2021, by which time he would be 67 years old. I infer he would have chosen to remain working as an employee until then but, at that age, he is unlikely to have thereafter secured further full-time work as an employee and much more likely to have reverted to full-time contract work.
Based on these mixed assumptions, I conclude Mr Zavodny would likely have worked as a full-time employee until the end of 2021, then continued in full time contract work until he turned 70 and thereafter continued in part time contract work for the five years until he turned 75 and retired completely.
The best indicator of his likely earnings in those capacities is my earlier assessment of his past earnings as a contractor and as an employee.
As an employee he by now would have been earning $1,006.30 net per week. For the purpose of this assessment, I would add to that amount the $234 after tax weekly value of an employer provided vehicle and accommodation and adopt a provisional weekly loss as an employee of $1,240.30. However, I would reduce from that the $105.06 per week he has the capacity to earn at the Lucinda boat ramp. If he is to be awarded for future loss of earnings his residual capacity to earn that modest amount must be taken into account. That would give a weekly loss of $1,135.24
It will be recalled he had been averaging about $800 net per week as a contractor in the few years prior to the accident. It is true that by now, had he continued to work as a contractor, he may have been averaging a somewhat higher income. However, in this exercise it is assumed he would not have worked as a contractor from 2015 to 2021 inclusive. Against that background of re-entering and re-establishing contract work after so long and towards the twilight of his career, his former average net income per week is a reasonable indicator of his likely income. I would however reduce that weekly amount by $105.06 to reflect his ongoing capacity to earn income, adopting a weekly figure of $694.94.
In assessing his likely weekly earnings as a part-time contractor, I would simply adopt $400 net per week, which is 50 per cent of his past likely weekly earnings as a full-time contractor. I do so on the basis 50 per cent would fairly reflect a graduated process over the period of the final five years in which Mr Zavodny would have gradually progressed from working more than 50 per cent of the time to working less than 50 per cent of the time. Again, I would reduce that weekly amount by $105.06 to reflect his ongoing capacity to earn income, adopting a weekly figure of $294.94.
I would apply a reduction of 15 per cent for contingencies.
The above assumptions and methodology would result in a calculation of future loss of earnings as follows:
Number of weeks
Net present Day Value (5% interest)
14.03.20 – 31.12.21
01.01.22 – 19.10.24
20.10.24 – 19.10.29
Less 15 per cent for contingencies
The total award is thus arrived at by estimating likely weekly lost net income converted to net present day value and discounted for contingencies. The amount so calculated also fairly reflects the present lost value of future earning capacity. I will award $206,094.47 for future loss of earnings.
Future loss of superannuation
In the above periods of future lost earnings Mr Zavodny would only have had the benefit of an employer superannuation contribution in the first period when being remunerated as an employee. During that 94 week period, 14 March 2020 to 31 December 2021, the employer superannuation contribution will be 9.5 per cent of gross income for 68 weeks until 1 July 2021, increasing at that point to 10 per cent for the remaining 26 weeks. I would apportion those, applying a single employer contribution of 9.64 per cent for the whole period.
In that period Mr Zavodny’s gross annual salary was likely to have been $65,000, or $1,250 gross per week. A contribution at 9.64 per cent of that gross would have resulted in weekly employer superannuation contributions of $120.50. Adopting a 5 per cent interest multiplier rounded to 90 for that 94 week period of contributions from today gives a net present day value of those contributions of $10,845. I would reduce that by 15 per cent for contingencies, to $9,218.25.
I will award $9,218.25 for future loss of superannuation.
Section 59 of the Act relevantly provides in respect of gratuitous services:
“59 Damages for gratuitous services provided to an injured person
Damages for gratuitous services provided to an injured person are not to be awarded unless –
the services are necessary; and
the need for the services arises solely out of the injury in relation to which damages are awarded; and
the services are provided, or are to be provided
(i) for at least 6 hours per week; and
(ii) for at least 6 months. …”
The prerequisite that the gratuitous services are provided for at least six hours per week and for at least six months does not require that the six months be a continuous period of six months and, rather, it can be a cumulative period.
In his quantum statement Mr Zavodny claimed a total of $42,430 for past care and assistance articulating the breakdown of that claim in schedule C of his quantum statement.
Mr Zavodny’s quantum statement spoke in only general terms about his past care and assistance, asserting:
“71. Prior to the accident, I was independent and attended to all of my own activities of daily living. Since the accident, I have required personal care assistance and assistance with household chores including shopping, meal preparation, domestic cleaning, laundry, vehicle cleaning, yard maintenance and transport.
72. Since the accident, I have received assistance from various friends. I have also engaged paid assistance for mowing, gardening and outdoor chores and domestic tasks. …
73. I continue to experience difficulties with and have required ongoing assistance with domestic cleaning and yard maintenance.”
In asserting his claim to care and assistance Mr Zavodny asserts in his quantum statement at schedule C, “I rely upon the reports from Mr Mark Scalia, Occupational Therapist, being Mr Scalia’s reports dated 23 August 2016 and 18 October 2019.” It goes on to assert that the facts set out in Mr Scalia’s reports of 23 August 2016 and 18 October 2019, which he “provided to Mr Scalia are true and correct”. Mr Scalia’s reports contained some detail regarding Mr Zavodny’s past care and assistance.
By the time of closing submissions the extent of the claim for past gratuitous services being pursued had reduced to a sum of $16,553, articulated within four care periods, namely:
- 2014 T Williams 6 weeks x $25 per hour x 13 hours = $1,950
- 2015 J Roati 6.714 weeks x $25 per hour x 13 hours = $2,182
- 2015 J Roati 23.28 weeks x $27.50 per hour x 6 hours = $3,841
- 2016 – June 2017 J Roati 78 weeks x $27.50 per hour x 4 hours = $8,580.
I will refer to those periods as service periods one, two, three and four. The parties are agreed that the abovementioned hourly rates should be applied to such of the disputed need for past care and assistance as may be found in Mr Zavodny’s favour.
The reduction in the quantum of services claimed was seemingly because the only alleged providers who gave evidence of providing services were Ms Williams and Mrs Roati. Mr Zavodny’s evidence of the provision of such services largely consisted of his adoption of the accuracy of the information in Mr Scalia’s report. However, that information was limited, with little detail as to the real need for the services. The failure to call other care providers was not necessarily determinative but it is unnecessary to express a concluded view regarding care no longer claimed for.
Service period one: 2014 T Williams 6 weeks x $25 per hour x 13 hours = $1,950
Service period one appears to correspond to part of Mr Scalia’s care period two which he described as running from 21 October 2014 to 27 December 2014, a period of 9.57 weeks. However, only six weeks of that period is now claimed, for services provided by Mr Zavodny’s former de facto, Tonia Williams. The balance related to alleged care by the Savis’s, who did not give evidence.
For this era Mr Scalia attributed a care period of 13 hours per week consisting of seven hours meal preparation, one hour domestic cleaning, one hour shopping, one hour laundry and three hours transportation. The evidence of Ms Williams is that more significant hours were involved so the claimed average weekly hours is well supported by evidence.
As to the number of weeks, it will be recalled Mr Zavodny stayed with Ms Williams from his second discharge from hospital on 21 October 2014 to 20 December 2014 when she went away for Christmas and he then stayed with the Savis’s. This was a period of two months, or eight weeks and five days. It is not clear why the period alluded to in closing submissions was only six weeks when the evidence supports the conclusion it was a two month period.
I infer from closing submissions that has some connection with a faint attempt to raise the possibility that Mr Zavodny may have stayed with the Savis’s for part of this period, founded on the fact that hospital records include a record of a same day admission and discharge on 3 December 2014, wherein Mr Zavodny’s address is recorded as Breakwater Quays, Lot 17, 48 Sir Leslie Thiess Drive, North Ward. That address is an apartment owned by the Savis’s. I did not regard Mr Zavodny’s responses to questioning on this topic as clearly conceding he in fact stayed with the Savis’s at that particular time as distinct from other periods. It may well be the Savis’s in some way helped him on this particular occasion of discharge and that resulted in the above record.
It will make no difference ultimately, but, despite the claimed period being conceded as six weeks, I am satisfied on the evidence of Mr Zavodny and Ms Williams that he did stay with her during the afore-mentioned two month period and received 13 hours care per week from Ms Williams.
Service period two: 2015 J Roati 6.714 weeks x $25 per hour x 13 hours = $2,182
The care period identified as care period three by Mr Scalia appears to coincide with service period two claimed in closing submissions. Mr Scalia qualified the total care provided as being 13 hours per week in the seven weeks from 28 December 2014 to 15 February 2015, consisting of five hours meal preparation, three hours domestic cleaning, one hour shopping, two hours laundry and two hours transportation. Mr Scalia described the care provider as Jane Roati for all of those tasks except for transportation in respect of which he described the care provider as Jane Roati and friends.
Mrs Roati’s husband, who happens to be Mr Zavodny’s solicitor in the present case, was a close friend of Mr Zavodny. Mrs Roati allowed Mr Zavodny to stay at her cottage at 31 Gossner Street, Lucinda over several periods. He lived at the Gossner Street cottage after Christmas in 2014 until February 2015. At that time he was on crutches and not very mobile. She provided extensive assistance with meal preparation, cleaning, washing, folding and ironing clothes, and grocery shopping. Mrs Roati recalled Mr Zavodny’s bed linen needed changing and washing more often than normal because the wound on his foot would ooze onto the linen. She estimated she would have spent four to seven hours a week cooking for Mr Zavodny, a minimum of three to four hours a week cleaning and about an hour each week grocery shopping. Adopting the mid-range of those estimates, allowing say five and a half hours for cooking and three and half hours for cleaning, and adding an hour for grocery shopping would give a total per week of 10, not 13 hours.
It is unclear why the period contended for in submissions was 6.714 weeks when the period, 28 December 2014 to 15 February 2015, was actually seven weeks and one day. Adding the correct length of the period to the eight weeks and five days of service period two gives a running total of 15 weeks and six days.
The need for significant care subsides
Up to this point it will be appreciated Mr Zavodny had been recuperating from serious medical complications and it is uncontroversial that he would have required assistance. However, after mid-February 2015 it will be recalled he travelled to Western Australia and made unsuccessful attempts in working as a master. While his attempts were unsuccessful it is obvious he was sufficiently recovered to travel to Western Australia and actually make the attempts. He was also able to drive by then.
In other words, Mr Zavodny’s need for very significant care, associated with his troubled short term recovery, had passed by mid-February. Thereafter the nature of his impairment, canvassed earlier, would only have precluded self-care tasks which were physically demanding.
Service period three: 2015 J Roati 23.28 weeks x $27.50 per hour x 6 hours = $3,841
Service period three appears to correspond to the period identified as care period seven by Mr Scalia, running from 15 July 2015 to 16 December 2015, a period of 22 weeks. For that period Mr Scalia’s report noted six hours assistance provided per week by Mrs Roati consisting of three hours meal preparation, one hour shopping, one hour domestic cleaning and one hour laundry.
Mr Scalia was also cross-examined about his reports’ assertion of the need for laundry assistance of one hour a week for Mr Zavodny from his care period four onwards. When it was suggested Mr Zavodny was quite capable in that era of putting on a load of washing, hanging it out and ironing it, Mr Scalia qualified Mr Zavodny’s ability to do so. Mr Scalia explained because of Mr Zavodny’s difficulty with his ankle and his standing tolerances, he would have had difficulty hanging out washing. He acknowledged tasks such as ironing could be modified so Mr Zavodny might iron whilst sitting down. However, he emphasised if any aspect of the laundry tasks involved standing for long periods and involved any weight bearing or loading on his left ankle, Mr Zavodny would have difficulty performing such tasks.
All of this faded in significance given the absence of evidence that Mrs Roati assisted with laundry or ironing in service period three.
Mrs Roati recalled that after Mr Zavodny returned to residing at her cottage from mid-2015 through to about Christmas of 2015 she would take Mr Zavodny meals a couple of times a week, and every week or so she would attend the cottage to tidy it up. She did not quantify those tasks with estimates as to how long they took but her evidence about them did not support the claim of necessary care of six hours per week.
While, her description of the assistance she provided through cooking for him in that era asserted “he wasn’t capable of doing it”, she did not appear to mean that literally and conveyed the impression she helped because he liked her cooking and she suspected he would not cook and feed himself as well as she thought he should. I was not left with the impression that her assistance in this period with meals, which was admirable and undoubtedly helped Mr Zavodny, was necessary.
In cross-examination Mrs Roati acknowledged she had kept no records of the assistance she provided. She rejected the suggestion that she was aware it would be prudent to keep such records, explaining she did not think she would need to keep a record of assistance provided to a friend. That evidence was quite credible. In any event her credit was hardly in issue in that she had already mentioned in evidence in chief that the assistance provided from mid-2015 was less than earlier in the year.
I am unwilling to act upon Mr Scalia’s estimate of six hours assistance per week in this period merely on the premise Mr Zavodny says the information in Mr Scalia’s report is accurate. Neither of the witnesses who could give first hand evidence on this issue - Mr Zavodny and Mrs Roati - gave evidence supporting the conclusion that as much as six hours needed assistance per week was provided in this period.
This signals the failure of the claim to past gratuitous services because s 59’s threshold requirement of the provision of services for at least six hours per week for six months cannot be met.
Service period four: 2016 – June 2017 J Roati 78 weeks x $27.50 per hour x 4 hours = $8,580
Service period four corresponds with Mr Scalia’s care period eight, a period of 78 weeks from 16 December 2015 to 14 June 2017. The calculated total of six hours per week was said by Mr Scalia to consist of two hours meal preparation by Mrs Roati, three hours domestic cleaning by commercial services and one hour yard maintenance by commercial services. It is not apparent how the latter two services can be claimed as gratuitous.
It is clear the gratuitous services provided to Mr Zavodny in this era were less than six hours per week and there is no evidence they were necessary. Indeed, Mrs Roati testified that she continued providing Mr Zavodny with home-made meals in this era because it was “something nice for him”.
It follows the threshold requirement of s 59 of the Act has not been met and there can be no award for gratuitous services.
I note for completeness that even if Mr Zavodny had sought to and did establish the receipt of gratuitous care for 6 hours a week or more continuously from the accident on 10 September 2014 to the time in mid-February when he was fit to travel and attempt work, that would only have evidenced a period of about five months of gratuitous care. The determinative problem with his gratuitous services claim was that he was not in need of the requisite duration of weekly gratuitous care beyond that period.
Past paid services
Mr Zavodny claims a total of $4,172 for past paid services.
The evidence proffered in support of this aspect of the claim was sketchy. Mr Zavodny’s quantum statement asserts that he “engaged paid assistance for mowing, gardening and outdoor chores and domestic tasks”. It then states, “I have incurred expenses in the sum of $3,067.00 for mowing and outdoor chores and $1,105.00 for domestic assistance…”. These appear to be exact figures, as if the result of adding various known amounts of expenditure by Mr Zavodny. Yet, no detail was included in Mr Zavodny’s quantum statement or evidence-in-chief about the amounts or why, when or how they were incurred and paid.
As to mowing and outdoor services, Mr Zavodny’s legal representatives provided the defendants with a bundle of invoices for mowing and associated services. It was exhibited by the defendants. That 36-page bundle contained 35 invoices and one email from Mr Richard Warden of the business known as The Clean Cut Bloke which had provided some of the mowing and related services. That email of 23 August 2016 was directed to Mr Zavodny’s solicitor and listed the dates and amounts charged for services provided to the Gossner Street cottage from January 2015. Of those listed, all but two are recorded in the tendered invoices. The two amounts not included in the tendered invoices were $140 attributable to 19 January 2015 and $120 attributable to 18 February 2015. Those amounts, added to all the invoiced amounts, gives a total of $2,970.90, which is short of the total claimed of $3,067.
Of the 35 invoices, 27 of them were invoices to John and Jane Roati or to John Roati. Those invoices totalled $2,210.90 (excluding amounts included in three invoices for work on another property, 80 Bruce Parade Lucinda). Their issue dates ranged from 18 March 2015 to 24 October 2017. The remaining eight invoices were invoices to Mr Zavodny. They totalled $500 and their issue dates ranged from 12 December 2017 to 18 September 2019.
In cross-examination Mr Zavodny was taken to three of the invoices issued to “John and Jane Roati” for mowing and associated services performed at 31 Gossner Street, Lucinda, the address of Mrs Roati’s cottage. He asserted those invoices were expenses of his notwithstanding that they were directed to the Roatis. Whether he had paid or was still indebted to the Roatis in respect of the invoiced amounts was not expressly addressed. Not without some hesitation I am prepared to infer of the 27 exhibited invoices which were issued to the Roati’s that they were for paid services which Mr Zavodny bore the cost of.
My drawing of that inference was made simpler by the defendants’ concession that the award for mowing and associated services should be $2,338. The defendants arrive at that figure after deducting invoiced sums which appear to be for work performed in periods when Mr Zavodny was not in residence at 31 Gossner St. They make the point he was not renting the premises and there is no evidence he held any obligation to maintain it when he was not using it. They note it is not even clear why Mr Zavodny was obliged to care for the yard when he was using the premises.
Given the sketchy state of the evidence the total of $2,338 conceded by the defendants is reasonable. I would award $2,338 for mowing and related services.
As to past cleaning expenses, six documents disclosed to the defendants by Mr Zavodny in support of his asserted paid cleaning expenses of $1,105 were exhibited. Those documents are either invoices or evidence of invoiced payments. They total $1,460, however only three of them, totalling $680, are directed to Mr Zavodny. Of the other three invoices, one totalling $60 is directed to the same email address that some of the invoices directed to Mr Zavodny were sent to, but it does not indicate who the invoice was invoiced to. Of the remaining two, one for $355 was directed to Roati Legal and the other is a receipt for payment by Roati Legal of an invoice in the sum of $365.
The defendants did in their submissions concede a compensable amount of $1,460. Yet Mr Zavodny continued to only claim $1,105, even by the time of submissions. In light of the defendants’ concession but in circumstances where I am asked to infer on skeletal evidence that the invoices were for paid cleaning services which Mr Zavodny bore the cost of, I will only draw that inference to the extent it relates to $1,105 worth of the invoices.
I would award $1,105 for past cleaning expenses. This would give a total award for past paid services of $3,443. However, judgment was reserved and some further allowance ought be made for what I am prepared to infer would have been further such expenses in the interim. The defendants’ analysis of weekly costs derived from the tendered invoices would suggest an additional amount of $433.28, giving a total of $3,876.28.
I will award $3,876.28 for past paid services.
Past special damages
Past special damages were agreed between the parties at the sum of $15,282.68.
The parties are also agreed that the Medicare refund was $4,770.20 leaving a special damages balance of $10,512.48 eligible to bear interest, which interest the parties agree should be .485 per cent (one-half of .97 per cent) from the date of the accident to the date of judgment.
This would result in total interest payable on special damages of $280.90.
Interest on past economic loss
It remains to calculate the interest on other past economic loss. Section 60 of the Act precludes the awarding of interest on general damages.
The awards of $266,054.04 for past loss of earnings, $26,398.56 for past lost superannuation and $3,876.28 for past paid services, should attract interest. Those awards total $296,328.88. That amount of loss accumulated over the period from the date of the accident to the date of judgment. Given s 60(2)’s requirement that interest relate in an appropriate way to the period over which the loss was incurred I would apply one half the appropriate rate of interest to the period from the date of the accident to the date of judgment. The appropriate rate of interest stipulated by s 60(3) as being the rate for 10 year Treasury bonds at the beginning of the current quarter, is 1.35 per cent.
I will therefore apply a rate of (1.35% x .05 =) .675 per cent to $296,328.88 (the total past economic loss not including general or special damages) for the period from the date of accident to the date of judgment. This gives an amount of $11,019.30.
I will accordingly award interest on the total past economic loss not including general or special damages, in the amount of $11,019.30.
Future cleaning and mowing and yard maintenance services
Mr Zavodny’s quantum statement asserted he will require ongoing commercial assistance with domestic cleaning and mowing and yard maintenance in the future. I accept his impaired physical capacity precludes him from mowing and tending to any demanding yard maintenance. While he would be capable of tending to some cleaning tasks, he would struggle to tend to vigorous cleaning tasks.
In the course of the trial I was informed it was agreed that an hourly rate of $40 per hour should be adopted in respect of any allowance to be made for future care. The defendants evidently did not understand that related to paid services like mowing and outdoor services and cleaning. They submit that the best evidence of the likely future need and cost of paid mowing and cleaning services is the evidence of past charging and its frequency. They submit, using that evidence to ascertain average costs, for a cost of $12 per week for mowing and $15 per week for cleaning, that is, a weekly total of $27.
I am conscious that Mr Zavodny’s yard would not need mowing and associated maintenance weekly year round and that his need for paid cleaning services relates only to vigorous cleaning tasks. Nonetheless, even allowing for these factors diminishing an average weekly rate for such assistance, a weekly total of $27 appears inadequate, particularly in light of commercial rates evidenced in Mr Scalia’s report.
A premise of the defendants’ past needs-based approach is that Mr Zavodny previously had sufficient funds to secure and pay for the services as needed. It is implausible that the paid services were adequate to assist him to maintain a consistently tidy yard and house. It is likely that Mr Zavodny suffered a less consistent standard because of financial constraints.
In the circumstances I would allow $50 a week for future cleaning and mowing and yard maintenance services.
The parties’ submissions each contended for, and I will adopt, a compensable future period of 10 years.
The present value of an allowance of $50 per week, at 5 per cent, applying a multiplier of 413 is $20,650. I would discount that amount by 15 per cent for contingencies to $17,552.50.
I will award $17,552.50 for future cleaning and mowing and yard maintenance services.
Future special damages
The only future special damages conceded by the defendants relates to podiatry costs. The podiatrist opined there is a future need for annual review at a cost of $70 and a yearly replacement cost for orthoses of $247.50. This is an annual total of $317.50 or a rounded weekly cost of $6.11. I would allow for a weekly cost of $6.11.
The defendants’ submissions appear to concede it is appropriate that such allowance ought run for 20 years based on Mr Zavodny’s statistical life expectancy. That period of life expectancy appears to be a rounded estimate of life expectancy derived from the Australian Bureau of Statistics publication and I will adopt it in assessing special damages.
The submissions by counsel for Mr Zavodny relied upon schedule B to the quantum statement in support of the various categories of special damage claimed. That schedule claims future special damages by reference to various categories of future special damage outlined in Mr Zavodny’s quantum statement at - namely:
- Future medical expenses;
- Future rehabilitation expenses;
- Future pharmaceutical expenses;
- Future aids and equipment expenses;
- Future travel expenses.
Future medical expenses
Mr Zavodny’s quantum statement asserts that he considers he will need to consult his general practitioner approximately six times per year at a cost of $70 per consultation. No evidence was proffered as to what those consultations would relate to and what the foundation for their “need” was. In the absence of such evidence it nonetheless remains a reasonable inference from the nature and gravity of Mr Zavodny’s three accident-related injuries and the ongoing difficulties they cause him that he will, over the years, average at least three consultations with a general practitioner per year in connection with the consequences to him of those injuries. I would allow for three general practitioner consultations a year at $70 per consultation, that is, $4.04 per week, for 20 years.
Mr Zavodny’s quantum statement asserts he will need to undergo further medical investigations in relation to his left shoulder which might include X-rays, ultrasound and MRI imaging prior to being referred to an orthopaedic surgeon. He claims $3,000 for those investigations. He claims a further $18,730 as the cost of future surgical treatment on his left shoulder. The latter figure is founded on an amount cited by Dr Maguire, however the only evidence in support of Mr Zavodny’s need for further medical investigation of his shoulder and surgical treatment of his shoulder is this observation in Dr Maguire’s first report:
“In reference to his shoulder, in the long term he may require stabilisation of the acromioclavicular joint and certainly may benefit from distal clavicle excision and subacromial decompression.”
Unfortunately Dr Maguire’s estimated cost of undertaking surgery does not distinguish between the cost of surgery for distal clavicle excision and subacromial decompression, as opposed to surgery for stabilisation of the acromioclavicular joint. In the absence of any opinion as to the probability that Mr Zavodny will, in the long term, require stabilisation of the acromioclavicular joint I cannot infer such surgery would be likely. On the other hand, given Dr Maguire’s opinion as to the prospective benefit of distal clavicle excision and subacromial decompression, I am prepared to infer Mr Zavodny likely would undergo surgery for such excision and decompression. It follows I am likewise prepared to infer Mr Zavodny will incur the cost of some further medical procedures and referrals in the lead-up to such surgery. Once again, the breakdown of such costs has not been the subject of evidence. In circumstances where I accept Mr Zavodny will undergo medical investigation and surgical treatment in connection with his left shoulder injury and the only real evidence about cost is Dr Maguire’s estimate, I will take the conservative approach of awarding half that estimate, namely ($18,730 ÷ 2 =) $9,365. I am confident at least that amount would be required. I am of course conscious it may prove to be inadequate but, if so, that will be a product of the state of the evidence before me.
Mr Zavodny’s quantum statement asserts he will require an initial assessment and follow-up consultation by a psychiatrist in the future and seeks an award of $380 for those two attendances, a total of $760. Those amounts are consistent with session costs mentioned in Dr Caniato’s report. I do not overlook that Dr Caniato thought Mr Zavodny was unlikely to engage in psychiatric treatment and did not want to take psychiatric medications, but I accept Mr Zavodny’s evidence that he will at least require an initial assessment and follow-up consultation. In the circumstances the claim to $760 appears modest and I will allow it.
Future rehabilitation expenses
Mr Zavodny’s quantum statement asserts he will require one physiotherapy treatment session per month at a cost of $70 per treatment. That assertion is unaccompanied by any indication from Mr Zavodny of what the physiotherapy treatment would be for and why it would be needed. However I note Dr Thomson opined Mr Zavodny would benefit from 12 physiotherapy treatments over eight weeks at an average cost of $100 per attendance. In light of that evidence I would allow a fixed award of $800 for physiotherapy treatment.
Mr Zavodny’s quantum statement asserts he will require approximately six fortnightly psychological counselling treatments at a cost of $200 per session. That cost is also consistent with the costs cited in Dr Caniato’s report although his total cost estimate for those sessions at $200 per session was $5,000 per year. Mr Zavodny is only claiming for six such sessions in the total sum of $1,200. Despite his apparent reticence to engage in psychiatric treatment, alluded to in the report of Dr Caniato, I infer it is implicit in Mr Zavodny’s perception he will require six such counselling sessions that he does indeed intend to undertake them. I would allow the sum of $1,200 for future psychological counselling.
Future pharmaceutical expenses
Mr Zavodny’s quantum statement asserts he will incur expenses to purchase analgesics/anti-inflammatories, heat relief creams, anti-inflammatory gels and other pharmaceutical items including prescription medication in the future. This assertion is followed in the quantum statement by the following requirements:
- One packet of analgesic medication per week at $8 per week;
- One tube of heat relief cream per month at an average costs of $4.62 per week;
- One tube of anti-inflammatory gel per month at an average weekly cost of $5.77 per week;
- Various other pharmaceuticals including prescription medications $5 per week.
Mr Zavodny claims the total of those weekly figures, $23.39, as payable for 20 years for future pharmaceutical expenses.
Once again no specific evidence was adduced from Mr Zavodny in support of these products’ costs or the need for them. I note Dr Fraser opined the yearly cost of such medications would be $800, which equates to $15.38 per week. I accept Mr Zavodny will, from time to time, require analgesic medication, heat relief cream, anti-inflammatory gel and other pharmaceutical products including prescription medications in connection with his injuries. I accept that will invariably cost Mr Zavodny money and he should be compensated for it. While the amount claimed does not present as obviously excessive, the state of the evidence again causes me to take a conservative approach. I would award $15 per week for future pharmaceutical expenses.
Future aids and equipment expenses
In Mr Zavodny’s quantum statement he claims the unremarkable costs of the following items to assist him with his daily activities as recommended by Mr Scalia:
- Walking stick at a cost of $38;
- Shower chair at a cost of $130;
- Hand-held shower at a cost of $98;
- Grab rails at a cost of $78;
- Non-slip floor coating at a cost of $69.
He claims the total of those amounts, $413, for initial purchase cost of equipment which I readily infer he would acquire and use. I would allow that amount.
He also claims the sum of $1.25 per week as a recurring cost for replacement aids and equipment. That equates to a cost of $65 a year which presents as a quite conservative annual cost for the purpose of ensuring Mr Zavodny has functional aids and equipment into the future. I would allow the recurring cost of $1.25 per week for future aids and equipment expenses.
Future travel expenses
In Mr Zavodny’s quantum statement he estimates he will be required to travel approximately 240 kilometres per year seeking medical, pharmaceutical and rehabilitation treatment for his injuries. He claims that expense at the rate of 90 cents per kilometre, constituting a recurring weekly cost of $4.15.
In light of my acceptance of some of the various categories of future special damage above, it is inevitable that travel will be required. Mr Zavodny’s estimate appears conservative but without explanation of the proposed rate of 90 cents per kilometre I would adopt the Australian Taxation Office’s rate of 68 cents, giving a weekly cost of $3.14. I will allow a recurring weekly cost of $3.14 for future travel expenses.
Summary of fixed future special damages
The above findings support an award of fixed future special damages as follows:
Medical investigation and surgery re shoulder
Two psychiatric consultations
Future psychological counselling
Initial equipment cost
Total fixed future special damages:
I will award $12,538.00 for fixed future special damages.
The above findings support an award to cover recurring weekly costs of future special damages constituted as follows:
Podiatrist and orthoses
General practitioner attendances
Future pharmaceutical expenses
Future aids and equipment expenses
Future travel expenses
Multiplier @ 5% interest for 20 years
Present day value of above weekly recurring costs
Less 15% for contingencies
Total present day value of recurring future special damages:
I will award $16,722.59 for the recurring weekly costs of future special damages.
The above findings give rise to the following calculation of total damages to be awarded:
Past economic loss
Past loss of earnings (including loss of non-cash benefits)
Past loss of superannuation
Past paid services
Interest on past economic loss (excluding general and special damages)
Past special damages
Interest on past special damages
Future loss of earnings (including loss of non-cash benefits)
Future loss of superannuation
Future cleaning and mowing and yard maintenance services
Fixed future special damages
Recurring future special damages
It will be necessary to hear the parties as to costs if costs are not agreed.
My orders are:
- Judgment for the plaintiff against the second defendant in the amount of $633,987.57.
- I will hear the parties at 9.15 am 1 April 2020 as to costs, if the parties have not by then informed the Registry that costs are agreed.
Ex 1 .
T1-57 L15 – T1-58 L35.
Ex 39 p 18.
Ex 31.1, 31.2; T1-38 LL5-33.
As to which see Jones v Dunkel (1959) 101 CLR 298.
Ex 1 .
T1-67 L 3.
Ex 39 p 17.
T2-81 L46 – T2-82 L14.
T1-68 L46 – T1-69 L7.
T2-76 L20, T2-78 L2.
Ex 34; T1-70 L1 – T1-71 L23.
T1-72 L20, T2-4 L29.
The quantum statement incorrectly stated this was 11 weeks.
Ex 1 sch A.
Ex 1 .
Ex 1 .
T1-26 – T1-32.
T2-76 L44 – T2-77 L6.
T1-53; Ex 38.
Eg T1-61 L41, T1-67 L30, T1-68 L12 (where the transcribed words “coming out with a high level of certainty that his demeanour obviously reflects” should read “coming out with a higher level of certainty than his demeanour obviously reflects”).
Ex 3 p 3.
T2-36 L46 – T2-37 L5.
T2-38 L31 – T2-40 L13.
Ex 25 .
Further to Associate Professor Lewandowski’s report also see Ex 61 regarding Mr Zavodny’s consistency of complaint in respect of that undisputed problem; T3-11 LL5-15.
Ex 32, 58.
Ex 58 p 178.
Ex 33 et seq.
Further amended defence, .
Ex 1 p 7 .
T2-60 L40, Ex 59 p 115.
Ex 26 p 12 .
Ex 27 p 2.
Ex 3 p 5.
Ex 24 p 9; Ex 23 p 6.
Ex 23 p 7.
Ex 23 p 6.
Ex 23 p 6.
Ex 24 p 7.
Ex 25 .
Ex 24 p 7.
Ex 24 p 7.
T2-72 L33, T2-73 L3.
T2-72 L33, T2-72 L44.
Ex 28; T3-27 LL3-11.
Ex 60 p 10.
Ex 62 p 3.
Ex 62 p 3.
Ex 28 p 9 [6.40].
T3-30 L41 – T3-31 L2.
Ex 5 p 7. The extent to which the prospect of shoulder surgery might improve his prognosis was not discussed in Dr Maguire’s report.
Ex 27 p 2.
Ex 27 p 2.
Ex 11 p 12.
Ex 11 p 12.
Ex 12 p 8.
Ex 1 pp 14-16.
Ex 4 pp 1-2.
Ex 5 p 8.
Ex 14 p 6.
Ex 26 p 15.
Ex 11 p 14.
Defendants’ Outline .
T2-14 L43 – T2-20 L11.
Ex 51, 52.
Ex 52; T2-20 L11.
Ex 1 sch A.
Ex 1 .
Ex 1 .
Ex 1 .
T2-8 L35 – T2-9 L18.
Ex 40 p 6.
Ex 41 p 6, Ex 42 p 7.
It is questionable, but need not be determined here, whether such an approach conforms with an implied premise of admissibility of quantum statements pursuant to s 92 Evidence Act, namely that they should contain information the witness would be permitted to give direct oral evidence about in evidence in chief – see Hunt v Lemura & Anor (No 1)  QSC 426.
The defendants cite Calverly v Green (1984) 155 CLR 242, 262
Such evidence was for example treated as admissible by Gleeson CJ, Clarke and Handley JJA in Guidera v Government Insurance Office of NSW (1990) Aust Torts Reports 81-040, 81-040 – 81-041. Nor was such evidence rendered inadmissible by the Act, as for example occurred in s 11(3)(b) in the context of liability and the issue of causation.
Ex 26 p 9.
Ex 15 p 3.
Ex 1 sch A.
Ex 15 p 8 and app 7.
(1991) 174 CLR 64, 83.
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 83 citations omitted.
See for example Nunan v Gerblich (1974) 10 SASR 39, 52 where Bray CJ suggested estimating at “the most exiguous figure consistent with the acceptance of the appellant’s evidence…”.
Minchin v Public Curator of Queensland  ALR 91, 93 per Barwick CJ.
The plaintiff’s written outline suggests a figure of $250 per week at .
The quantum statement seems to erroneously apply 9.5 per cent to a total net wage figure.
T1-56 L15, T1-56 L27.
Social Security Act 1991 (Commonwealth) s 23(5A).
Ex 28 p 32 [20.14].
Rounded from 93
Applying formula C x
Applying formula POrdinary x
Rounded from 260
Applying formula POrdinary x
Derived from the result of the long form calculation for the same period above in future loss of earnings.
Boon v Summs of Qld Pty Ltd  QSC 162 , . Also see Brown v Holzberger  QCA 295 -.
Ex 1 sch C.
Ex 1 sch C, Ex 7, Ex 8.
Ex 1 .
T3-9 L3. The concession related to the rates in the Quantum Statement but they are the same rates as asserted for Mr Zavodny in closing submissions.
Rossi v Westbrook and Anor  QSC 311 .
Ex 58 p 394/121.
T1-66 L20, T2-24 L37.
Ex 7 p 21.
Ex 1 .
Ex 57 pp 9-19, 21-36.
Ex 57 pp 1-8.
See for example the cross-examination of Mr Zavodny at T2-27 L42, T2-28 L19, T2-28 L25.
Defendants’ outline , .
T2-49 L22. An amount claimed by Townsville Hospital for hospitalisation fees listed in special damages schedule B as $7,843, which was not included in the agreed special damages award, need not be the subject of an order because there has been an indemnity given in relation to it as between the parties – T3-8 LL10-20.
That period, from 10 September 2014 to 13 March 2020, was five years six months and four days (or 2012 days or 287 weeks and three days).
Ex 7 p 22.
Ex 5 p 9.
Ex 11 p 12.
Ex 3 p 5.
Ex 11 p 12.
Ex 11 p 12.
- Published Case Name:
Zavodny v Couper & Anor
- Shortened Case Name:
Zavodny v Couper
 QSC 42
13 Mar 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 42||13 Mar 2020||Judgment for the plaintiff against the second defendant for negligence in the amount of $633,987.57: Henry J.|