Ross v The Broadie Tavern Pty Ltd
[2004] QDC 367
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- Unreported Judgment
- Ross v The Broadie Tavern Pty Ltd[2004] QDC 367
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Ross v The Broadie Tavern Pty Ltd[2004] QDC 367
Ross v The Broadie Tavern Pty Ltd[2004] QDC 367
DISTRICT COURT OF QUEENSLAND
CITATION: | Mark Andrew Ross v The Broadie Tavern Pty Ltd [2004] QDC 367 |
PARTIES: | MARK ANDREW ROSS Plaintiff and THE BROADIE TAVERN PTY LTD Defendant |
FILE NO: | 1018/2001 |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court Southport |
DELIVERED ON: | 20 February 2004 |
DELIVERED AT: | Southport |
HEARING DATE: | 10 February 2004 |
JUDGE: | Newton DCJ |
ORDER: | Judgment for plaintiff in the amount of $92,581.80 |
CATCHWORDS: | Action for damages for personal injury arising out of gas explosion – partial to full thickness burns to feet, lower legs and right forearm – psychological injuries – quantum of damages assessed at $92,581.80 Cases cited: Phillips v Lanestar Pty Ltd unreported decision of McGill SC DCJ, 19 March 1999, District Court, Maryborough, No 14 of 1998 McLellan and Brayton v Queensland Rail unreported decision of Robertson DCJ, 6 April 2001, District Court, Gympie, No 8 of 1998 Marsden v York & Ors T/A “York Pastoral Co” unreported decision of Botting DCJ, 6 August 1997, District Court, Maryborough, No 26 of 1995 York & Ors v Marsden, CA No 7543 of 1997, Court of Appeal, 19 May 1998 Jason Andrew Wingett v Ronald George Wingett unreported decision of Ambrose J, 26 October 1999, Supreme Court, Brisbane, No 558 of 1994 |
COUNSEL: | Mr C Forrest – plaintiff Mr M Martin – defendant |
SOLICITORS: | Bilbie Dan – plaintiff Robert Bakker Lawyers – defendant |
- [1]This is an action for damages for personal injury arising out of an incident that occurred at the Broadbeach Tavern on 18 March 2000.
- [2]The plaintiff, whose date of birth is 2 September 1964, was exposed to a fiery ignition of gas while standing in front of a barbecue being operated by an employee of the defendant when a gas line was disconnected from a gas bottle without being fully closed while at least one of the barbecue’s gas burners was still alight.
- [3]As a result of the fiery ignition of gas, the plaintiff suffered partial to full thickness burns to his feet, lower legs and right forearm as well as psychological injuries. He also developed migraine headaches.
- [4]At the commencement of the trial I was informed by Counsel that liability was no longer in issue and the hearing, accordingly, proceeded only in respect of quantum of damages.
- [5]The plaintiff was, at the relevant time, attending the Australian Surf Lifesaving Titles on the Gold Coast, having travelled from Newcastle in New South Wales where he was the Club Captain of the Nobby’s Surf Lifesaving Club.
- [6]At approximately 2.30pm as the events were concluding, the plaintiff together with a number of other persons went from the beach to the Broadbeach Tavern to have some lunch. While standing slightly to the left of the barbecue and in front of it and waiting for the operator to place some sausages on the bread that he was holding, the plaintiff saw the operator bend down and undo a gas line to the barbecue. There was an explosion and a fireball came out from under the barbecue causing the plaintiff to turn and put his hand up to protect his face. The plaintiff recalls his arm being burnt and a gas bottle spinning around with flames coming out of it. He jumped over a railing and was picked up by a security officer at which time he saw the gas bottle flying through the air with flames coming out of it before landing close to him.
- [7]The security guard pulled the plaintiff away from the gas bottle which continued to spin around on the ground while emitting flames. The plaintiff then looked down and saw that both his legs had been burnt black. He was wearing long shorts just below his knees, a T-shirt and had had a pair of thongs on his feet. He noticed that his legs had been burnt and he was no longer wearing his thongs. His blackened legs seemed the most severely burnt to him although the skin on his arms was bubbling and peeling off. The plaintiff recalls a strong smell of burning flesh.
- [8]The plaintiff experienced severe pain which felt as though his legs were still on fire. He was shaking and calling out for someone to put water onto his burnt legs and arms. The plaintiff had some knowledge of first aid as a result of his training and experience as a lifesaver.
- [9]He recalls that when the water stopped being poured onto his burns his limbs felt as though they were still burning up. He felt freezing cold and then felt as though he was still burning and knew that he was in shock.
- [10]Initially, first aid was administered by a number of lifesavers who had run from the beach to the tavern after hearing the explosion. An ambulance arrived within 15-20 minutes and the plaintiff was given oxygen and his clothes were cut off to ensure that he was not burning underneath them. The ambulance officers also administered morphine and continued to pour water over the plaintiff’s legs on the way to the Gold Coast Hospital at Southport.
- [11]On arrival at the hospital the plaintiff was put into the emergency area where water and a cooling cream were applied to his burns. He was also placed on a drip to replace the loss of bodily fluids resulting from the burns. Other members of the plaintiff’s team arrived at the Gold Coast Hospital approximately half an hour later.
- [12]The plaintiff remained at the Gold Coast Hospital for some four hours before being transferred by helicopter to the Burns Unit at the Princess Alexandra Hospital in Brisbane. Unfortunately, the helicopter put down in what the plaintiff described as a paddock from where he was wheeled on a trolley to the hospital. This caused further considerable pain because of the jolting of the trolley as it was wheeled. He was again taken to the Emergency Department and recalls shivering and feeling freezing cold as a result of his being in shock.
- [13]After waiting for some time in the Emergency Department, the plaintiff was taken to the Burns Unit where his burnt skin was hosed off. This process created what the plaintiff described as an unimaginably bad smell. He was given morphine, the dose of which he was able to self-regulate to enable him to sleep.
- [14]The plaintiff remained in the Princess Alexandra Hospital for some three weeks during which time he received a skin graft on his left foot which entailed the removal of skin from his thigh, which was then stapled to his foot. The area of his thigh from where the skin was taken remains slightly noticeable but the skin graft to the foot is always obvious and indeed it is still possible to see the mark left by the thong which was burnt on his foot.
- [15]The dressings were changed twice a day whilst the plaintiff was in hospital and further areas of burnt skin were scraped off while the plaintiff was showering. This procedure was particularly painful as the air was then able to get to those areas which had been burnt.
- [16]When released from Princess Alexandra Hospital the plaintiff returned by air to his home in Newcastle. He took pain killers during the trip and was required to keep his left leg elevated throughout the flight.
- [17]During the first week of his return to Newcastle photographs of the plaintiff’s injuries were taken. These were admitted into evidence and graphically depict the nature and extent of the burns suffered by the plaintiff to his feet and legs.
- [18]A letter under the hand of Dr Neil Allen, plastic surgery Registrar at the Princess Alexandra Hospital, dated 6 October 2000 confirms that the plaintiff was admitted to that hospital on 19 March 2000 having been transferred from the Gold Coast Hospital. Dr Allen states that the plaintiff had burns to approximately 10% of his body including patchy burns to both legs which were described as mostly superficial. However, some areas were initially assessed as being possibly full thickness burns. None of the burns were circumferential around the limbs and the distal neurovascular status was normal. An area of superficial burn to the right forearm was also observed. The distal neurovascular status of that limb was again intact. Initial treatment consisted of dressing with antibiotic cream and the plaintiff was admitted to the Burns ward for further dressings and analgesia.
- [19]Dr Allen reports that by 29 March 2000 it was apparent that an area on the plaintiff’s left foot required excision and skin grafting. That was performed under a general anaesthetic on that day. The area was resurfaced using a split skin graft harvested from the plaintiff’s upper left thigh. The plaintiff is said to have made an uneventful recovery from that procedure leading to his discharge from hospital on 5 April 2000 with his wounds healing well. Arrangements were made for the plaintiff to be followed up by a plastic surgeon in Newcastle.
- [20]In a report dated 30 November 2000, Dr John Newton, a cosmetic plastic surgeon of Warners Bay, New South Wales (to whom the writer bears no relationship), states that he first reviewed the plaintiff on 17 April 2000 at which time observations were made of fully healed wounds with a fully healed donor site on the left thigh. Treatment at that stage was the use of a Terracortril to help maintain the skin in a soft condition. Dr Newton reviewed the plaintiff on 1 May 2000 and on 31 July 2000 at which stage he considered the plaintiff’s wounds to be in good condition.
- [21]As at the date of the report (30 November 2000) the plaintiff was said to have an area of fully-healed partial thickness and full thickness/grafted burn on his left leg. The area of graft is approximately 13cms x 11cms. The area of discolouration on the left leg extends a fair percentage over the anterior leg below the knee, the largest single area being 8cms in diameter approximately. A moderately large pale donor site on the left anterior thigh was noted.
- [22]Dr Newton reports that the plaintiff claimed to have ongoing problems related to the burns in that he has been spending significant time at the beach in the capacity of lifesaver and Captain of the Nobby’s Surf Club. He finds that his areas of burns are very sun-sensitive and he has paraesthesia in the area. When surfing he often feels that his areas of burns are being further damaged. He also reports swelling of his left leg by the end of his working day as a hotel manager. The plaintiff is self-conscious with respect to the area of discolouration on his left foot and leg and this is compounded by the fact that as a surf lifesaver the area is usually exposed. Dr Newton does not believe that further surgery and treatment is indicated and places the percentage of residual scarring in the region of 5%-8%.
- [23]A supplementary report by Dr Newton dated 6 March 2003 confirms that the plaintiff continues to experience problems with the area of grafting on his left foot. The skin is said to be easily traumatised, giving ulcers which take an average of two weeks to heal. When the plaintiff stands for a prolonged period of time there is swelling of the left leg from the mid-shin down. This swelling subsides overnight. The plaintiff continues to use sun screen daily and remains embarrassed by the colour change on his left leg and foot.
- [24]Upon examination Dr Newton observed discolouration of the middle third of the left lower leg anteriorly, due to the superficial burn to that area. That discolouration remains much the same as when previously reviewed. The graft on the dorsum of the left foot is still obvious and its dimensions remain approximately the same as when previously examined (11cms x 13cms). It is a thin hairless graft. There is a 1cm diameter ulcer at the proximal extent of the graft which is said to be related to trauma.
- [25]In relation to further treatment, Dr Newton felt that this was not indicated at the time he wrote his report although theoretically it would be possible to shave the area and overgraft it in an attempt to toughen the area of grafting. This was seen as a possibility for the future. With respect to the swelling, Dr Newton could only suggest that the plaintiff has undergone some venous change to his leg, perhaps at the time of the original injury. He has suggested that the plaintiff attend his general practitioner in order to have the veins in the leg investigated.
- [26]Dr Newton’s view, as expressed in his report, is that there will be minimal improvement of the scars and the colour change over time. There will be ongoing sensitivity of the skin to trauma, although the skin normally does toughen up somewhat with time. There is said to be a slightly increased chance of skin cancer in the area of the grafting and the burn. Dr Newton places the percentage deformity in the region of 5% and the percentage disability in the region of 4%-5% of the leg below the knee.
- [27]In relation to the plaintiff’s psychological injury Dr Anthony Nicholas, a clinical and forensic psychologist, has prepared a number of reports. The first of those, dated 21 November 2001, briefly confirmed that the plaintiff attended a session in review on that date at which time Dr Nicholas noted that presenting signs and symptoms evidenced anxiety, distress and reactive depression clearly predicated on the incident of 18 March 2000.
- [28]A more substantial report, dated 15 January 2002, states that the plaintiff attended upon Dr Nicholas on 13 November and 11 December 2000 and on 22 January, 19 February, 26 April, 31 May and 19 November 2001 and on 8 January 2002. A further session was planned for mid-February 2002. Dr Nicholas states that from the history of the matter and the presenting signs and symptoms observed over the sessions attended, the plaintiff has sustained severe psychological injury as a result of the gas explosion and subsequent burning to his body. Dr Nicholas reports that the plaintiff has yet to fully recover from the psychological damage which the incident has caused him and he described the psychological injury as a state of depression with symptoms of poor self-esteem, negative self-worth, lack of enthusiasm, loss of interest, poor concentration and in particular, emotional withdrawal. The plaintiff’s most singular precipitating disability was seen as his inability to establish or maintain a relationship despite the fact that he presents as a robust male of athletic build who considered himself an eligible husband and father. Dr Nicholas reports an impairment in functioning sustained by the plaintiff assessed at 28%.
- [29]A further report by Dr Nicholas dated 5 December 2002 states that the symptoms described in the report of 15 January 2002 continue despite the fact that the plaintiff had been fully employed as a bar manager at the Mary Ellen Hotel for the past 18 months. The plaintiff continues to be fearful of his overall state of vulnerability. Dr Nicholas considers that the plaintiff’s lack of involvement in a serious permanent relationship exemplifies the problems which he continues to face. Continuing therapy on a monthly basis for a period of up to nine months in order to address symptom reduction and improve function was recommended. The costs of such therapy is said to be $2,000.00.
- [30]Dr Nicholas provided a further report dated 9 February 2004 in which he states that the plaintiff continues to be challenged by a number of stressors, most of which are predicated on the incident of 18 March 2000. Dr Nicholas reports that the plaintiff is managing his life as best he can although it was evident that any detailing and confrontation of the incident in question triggers intense emotional reactions, predicated on the memories of the burning to his body, his subsequent hospitalisation and the long-term recuperation he had to undergo. Further counselling on a monthly basis for three to five months was seen as likely to further promote symptom reduction and improved function. The costs of such additional sessions would be $900.00.
- [31]There was no serious challenge to the evidence of Dr Newton or Dr Nicholas, both of whom amplified their reports in oral testimony received by telephone during the trial. I accept their evidence. I also have no hesitation in accepting the evidence of the plaintiff who I found to be an honest, forthright and reliable witness who did not seek to overstate the effects of the injuries he received.
- [32]In assessing general damages for pain, suffering and loss of amenities it is necessary to keep in mind the physical and psychological consequences of the injuries sustained by the plaintiff and the loss of amenities in terms of the plaintiff’s diminished opportunity of participating in lifesaving activities. Although the plaintiff still finds it distressing to confront and discuss the accident and resulting injuries suffered by him, I think it probable that over time the psychological symptoms referred to by Dr Nicholas will settle. However, the plaintiff’s reluctance to resume participation in the full range of activities that he formerly enjoyed with the Nobby’s Beach Surf Club is likely to persist. This is because the plaintiff, quite understandably in my view, is reluctant to submit the area of burns and graft on his left leg and foot to significant exposure to the sun, even if those areas are protected by sun screen. In this regard I note that the plaintiff received conflicting advice from his treating doctors with the medical staff at the Princess Alexandra Hospital advising him not to expose those areas to the sun and Dr Newton advising him that he should apply an appropriate sun screen whilst on the beach or in the water.
- [33]I accept that the plaintiff’s reduced involvement in the Surf Lifesaving Movement is a factor of considerable significance in his life. There can be no doubt that this has been brought about by a combination of the physical and psychological consequences of the injuries caused by the gas explosion.
- [34]Counsel for the plaintiff has contended for an award of between $40,000-$45,000 in respect of pain, suffering and loss of amenities and I have been referred to a number of comparable cases where damages have been assessed in respect of burns.
- [35]In Phillips v Lanestar Pty Ltd unreported decision of McGill SC DCJ 19 March 1999, District Court, Maryborough, no. 14 of 1998, his Honour assessed general damages of $12,500 in the case of a male mechanic aged 32 at trial who suffered burns to his hands, face, hair and left ear when solvent ignited during the course of his employment on 6 October 1995. His hair and eyebrows were burnt off and he suffered partial thickness burns to his body. The plaintiff was in pain for some three and a half weeks following the accident although the burns healed without significant permanent scarring. Despite a positive prognosis, the plaintiff developed a phobia in respect of fires and flammable materials. He did not wish to work as a mechanic again.
- [36]It is clear, in my opinion, the burns suffered by the plaintiff in Phillips were not as serious as those experienced by Mr Ross.
- [37]In McLellan and Brayton v Queensland Rail, unreported decision of Robertson DCJ, 6 April 2001, District Court, Gympie, no. 8 of 1998 and D40 of 2000 the plaintiffs were boys aged 12 and 14 respectively at the time they were injured and 18 and 19 respectively at the time of trial. Both plaintiffs suffered burns to their bodies when they rode their trail bikes into a fire lit by the defendant. The first plaintiff suffered serious and painful burns to his left leg and thigh, his left arm and the left side of his face. He had a long course of recovery in hospital. The areas of scarring remained sensitive to sunlight, thus preventing him from pursuing any occupation which would require him to work outside. His Honour assessed general damages in respect of pain and suffering at $45,000 in the case of the first plaintiff.
- [38]In my opinion the injuries suffered by the first plaintiff in McLellan may be considered to be similar in both nature and extent to those suffered by Mr Ross although this conclusion must be qualified by recognising that the facial burns in McLellan may indicate that the injuries in that case were somewhat more extensive than in the present.
- [39]The burns suffered by the second plaintiff were not as serious or as painful as those experienced by the first plaintiff as would seem to be clearly indicated by an assessment of the second plaintiff’s damages under all heads as $10,000.00 only.
- [40]In Marsden v York & Ors T/A “York Pastoral Co”, unreported decision of Botting DCJ 6 August 1997, Maryborough No 26 of 1995, the plaintiff was a male farmhand aged 28 at trial who suffered burns when a generator near which he was working exploded. He suffered burns principally to his back, right arm and hand as well as the back of his legs. The plaintiff suffered full thickness burns to 35% of his body and was left with extensive scarring which amounted to a significant cosmetic disability. He was hospitalised for a period of approximately six weeks. The plaintiff also experienced ongoing emotional problems as a result of the accident. He had, before the accident, led a very active life. His Honour, in assessing damages for pain and suffering in the amount of $50,000.00, accepted that the excruciating pain suffered by the plaintiff required a substantial general damages award.
- [41]On appeal (York & Ors v Marsden, unreported decision of the Court of Appeal CA No 7543 of 1997, dated 19 May 1998) the assessment of general damages was not disturbed, although the awards for past and future and economic loss were reduced.
- [42]The nature and extent of the injuries suffered by the plaintiff in the present case are not, it seems to me, as serious and extensive as those in Marsden. However, there can be no doubt, and I so find, that the plaintiff, Mr Ross, suffered excruciating pain at the time he was injured and that this continued up until his transfer to the Burns Unit at the Princess Alexandra Hospital and lasted throughout the period of his hospitalisation although on a diminishing scale. He continued to experience pain during his recuperation at home after he was flown back to Newcastle.
- [43]In Jason Andrew Wingett v Ronald George Wingett unreported decision of Ambrose J dated 26 October 1999, Supreme Court, Brisbane No 558 of 1994, the male plaintiff was a high school student in grade 11 and aged just less than 16 years when injured on 16 December 1989. When injured he was engaged in vacation employment in his father’s panel-beating business. In the course of following his father’s directions, the plaintiff’s face, neck, torso and left hand and forearm were engulfed in flames as he was inserting petrol into an engine. Liability was admitted and the case was contested solely on the issue of quantum of damages.
- [44]The plaintiff required hospitalisation and underwent a series of skin grafts. Prior to the incident he had been a well-built, handsome and athletic young man. He was left with significant disfiguring scars as well as a painful skin sensitivity condition from scar adhesions. He suffered reduced mobility in his neck and pressure on the spinal column together with discomfort in the region of the chest and abdomen. These injuries were said to have been so significant as to be substantially life-altering. The plaintiff’s schooling was significantly disrupted and he underwent a personality change, becoming very reclusive. It was accepted at trial that he had been caused a psychiatric condition. General damages for pain and suffering were assessed at $75,000.00, with $45,000.00 of this being attributed to pre-trial pain and suffering and $30,000.00 post-trial.
- [45]Counsel for the plaintiff, in his closing submissions, conceded that the circumstances in the present case bear little comparison to those in Wingett’s case. Such concession was appropriate and little assistance can be gained from that matter.
- [46]Counsel for the defendant has submitted that the appropriate award in the instant case for pain and suffering would be $35,000.00, based upon the assessments made in the cases to which I have referred. Mr Martin accepted in his submissions that the plaintiff suffered extensive pain and discomfort immediately following the accident but suggests that he has made quite a good recovery. In this regard Mr Martin points to the evidence of Dr Newton who says that the plaintiff suffers from a 4%-5% disability of the left lower limb beneath the knee which was not really a functional disability in that he does not walk with a limp or has been left with an inability to do certain things. The assessment of the disability by Dr Newton, submitted Mr Martin, was based upon the loss of sensation or paraesthesia of which the plaintiff still complains.
- [47]I accept that no orthopaedic damage has been occasioned to the plaintiff and that the swelling of which he complained to Dr Newton cannot be attributed to the accident on the material before me. I further accept that the plaintiff has made quite a good recovery from the fairly nasty physical injuries he suffered as a result of the gas explosion. The psychological sequelae are of some seriousness in this case, bearing in mind the impact of his injuries upon his personal life in respect of his inability to form and maintain a relationship with a female and also in respect of his work situation. In my view, the plaintiff would be appropriately compensated by an award for pain and suffering and loss of amenities by an assessment of $40,000.00.
- [48]Interest is allowed on $20,000.00 of this award at 2% for four years, which yields a further $1,600.00.
- [49]With respect to past economic loss, Counsel for the plaintiff has submitted that an assessment of $14,755.00 should be made comprising three components. Firstly, the 10.5 weeks during which the plaintiff lost $570 net per week as a direct result of his inability to work following the accident. This component of $5,985.00 is not contested by the defendant. The second component relates to the loss claimed of $570 net per week for a period of nine weeks, after he lost his employment at the Mattara Hotel in April of 2001. If allowed, this second component would yield a further $5,130.00. This component is disputed by the defendant on the basis that the plaintiff was dismissed principally for drinking on the job. However, I am satisfied that the plaintiff suffered depression as a direct result of the accident and that he turned to drink and antidepressant medication in an attempt to deal with this condition. In this regard there is evidence from Dr Nicholas that if the plaintiff had been dismissed for drinking on the job then his retrenchment was related directly to the psychological sequelae of the accident. I am satisfied, therefore, that the amount claimed under the second component should be allowed.
- [50]The third component of past economic loss relates to the 52 weeks during which the plaintiff earned a reduced income through his employment at the Mary Ellen Hotel, compared with what he was previously able to earn at the Mattara Hotel. The difference was $70 per week and I am satisfied that this was directly attributable to the psychological sequelae of the accident. This yields a further $3,640.00. I therefore assess past economic loss in the sum of $14,755.00.
- [51]I allow interest at 6% per annum for four years on $9,695.00 of this amount to take into account the requirement that $5,060.00 must be returned to the New South Wales WorkCover system. This yields a further $2,326.80.
- [52]I accept the claim with respect to past loss of superannuation at 8%, which yields a further $1,180.00. In this regard I note the evidence of the plaintiff that his employer had paid superannuation contributions for him at the statutory rate of 8% up until the time he was injured.
- [53]Counsel for the plaintiff includes a sum for future economic loss, assessed globally, in his schedule of damages proposed of $30,000.00. I do not intend dwelling on this claim, which is simply not supported in any way by the evidence. The plaintiff is employed as a bar manager, an occupation which is both enjoyable and satisfying to him and one in which he takes pride. It is highly unlikely, in my view, that he would return to a previous occupation of truck driving; his future lies in the hospitality industry, most probably in his present capacity. That being so, there is only a very small likelihood of his being disadvantaged in terms of his future employment by the injuries sustained on 18 March 2000. That likelihood would be appropriately recognised by a nominal award, which includes a small component in respect of future loss of superannuation, of $2,000.00.
- [54]Out-of-pocket expenses have been agreed at $20,940.00. This figure is net of the amount to be refunded to WorkCover (NSW). Interest on $1,000.00 of that should be allowed at 6% for four years to yield a further $240.00.
- [55]The claim under the head of Griffith v Kerkemeyer is also, in my view, somewhat inflated. Counsel for the plaintiff has claimed on behalf of his client $16,275.00 for gratuitous care by the plaintiff’s mother. This amount is based on seven weeks following the plaintiff’s return to Newcastle to the time he returned to work at eight hours/day. The applicable rate is said to be $12.50/hour. The claim extends for a further six months at five hours/day at the same hourly rate.
- [56]The difficulty with the plaintiff’s claim in this respect is that no records were apparently kept, for example, by way of notation in a diary, and the claim is really a guess rather than an estimate. Thus, in his evidence, the plaintiff was able to suggest that two hours/day were required for assistance by his mother in dressing his burns and grafted area, with another two hours/day accounted for by preparation of meals and washing, ironing, cooking and cleaning. An unknown period of time relates to the plaintiff’s mother comforting her son during the night should he have his sleep disturbed by nightmares. Furthermore, no real attempt has been made to reduce the number of hours claimed as the plaintiff’s condition improved and as, correspondingly his requirements for assistance by his mother diminished.
- [57]I am inclined to accept the submission of Counsel for the defendant in this regard which was in these terms:
“There’s no evidence in the medical reports that when he went back to work that he couldn’t do the washing for himself, or couldn’t cook himself a meal, and those sorts of things. We don’t really know. It’s all a bit airy fairy, if you pardon the expression, but what the plaintiff said was that immediately coming home from hospital, we had this half an hour in the morning of taking the bandages off in the shower. Another half hour of putting on the bandages, so that’s an hour, and then we’ve got half an hour for preparing his breakfast, so we’re up to an hour and a half, and then he sits on the couch. Even allowing half an hour to make him a sandwich or a cup of tea at lunchtime, that brings it up to two hours, and then at best we’ve got another – say, if she does a bit of washing at the end of the day and another hour of bandaging in the afternoon, at best we’re looking at about four hours a day, and I’m saying that’s really at its peak and it gets better from there. There obviously might have been times she might have got up during the night if he had a nightmare, but again we don’t really know how often that happened.”
- [58]I accept the submission of Counsel for the defendant that after the plaintiff returned to work there should be a significant discount to the five hours that is claimed in respect of each day. Doing the best I can on the material before me I assess the figure for gratuitous assistance at $8,000.00 and allow interest on that at $640.00.
- [59]I allow $900.00 in respect of the costs of future counselling as indicated in the evidence of Dr Nicholas.
- [60]The awards under all heads of damage are therefore as follows:
Pain, suffering and loss of amenities | $40,000.00 |
Interest on $20,000 @ 2% p.a. for 4 years | $1,600.00 |
Past loss (economic) | $14,755.00 |
Interest on $9,695 @ 6% p.a. for 4 years | $2,326.80 |
Past loss of superannuation at 8% | $1,180.00 |
Future economic loss including future loss of superannuation | $2,000.00 |
Out-of-pocket expenses (agreed) – to reflect amount due to WorkCover of $5,060.00 | $20,940.00 |
Interest on $1,000 @ 6% p.a. for 4 years | $240.00 |
Griffith v Kerkemeyer | $8,000.00 |
Interest @ 2% p.a. for 4 years | $640.00 |
Cost of future counselling | $900.00 |
TOTAL: | $92,581.80 |
The total is expressed net of the statutory refund to WorkCover of $5,060.00.
- [61]I give judgment to the plaintiff in the sum of $92,581.80. I will hear submissions with respect to costs in due course.