DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 1 May 2009, the plaintiff, during the course of his employment with the defendants at a cotton farm at Mungindi in Queensland, was assisting in the operation of a cotton compactor when he suffered a severe crush injury to the right forefoot, resulting in the later amputation of the second, third, fourth and fifth toes. 

2. [2]
   By reason of admissions made - which appear in the Amended Defence filed 16 May 2011 - the defendants have stated that liability is admitted pursuant to s 281(4) of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”).

3. [3]
   At the time of the incident, the plaintiff, who had left Ireland in December 2008, had obtained an Australian “working visa” (valid for one year) before he left.  He was engaged in that work at that time as a result of a decision which he had reached that he liked Australia and wished to stay a second year. That meant, for the purposes of extending his visa for that additional time, he was required to work 88 days on a farm or in a regional area in Australia during the initial year. 

4. [4]
   Although the only major issue is the quantum of damages, many aspects of that issue are still in contest, including: the prospect of the plaintiff having stayed in Australia but for the incident; if he had stayed, what type of work he might have obtained, and for how long in any particular instance of it (considering the advantages and disadvantages arising from such an instance or instances); the actual extent of his residual working capacity, bearing in mind the nature of his physical disability; whether he now has any psychiatric disability; and, to a lesser extent in the overall contest, the exact amount of the various heads of damage.

Circumstances of injury, and immediate aftermath

5. [5]
   It is unnecessary to canvass, at least in all the detail which the plaintiff recounted in his evidence, the way in which the incident occurred.

6. [6]
   Nevertheless, in order to understand the pain and suffering, and emotional trauma, that the plaintiff underwent, some brief discussion is necessary.

7. [7]
   There were photographs (Exhibits 13 and 14) in evidence of the compactor. The part of the machinery that compacted the cotton moved along the top of the compactor module. In the work practice adopted, the plaintiff was standing on the same edge along which, automatically, the wheels moved the compacting machinery. This required, on approach, that the worker avoid such machinery by swinging out of its way. The plaintiff was, in this instance, unable to achieve such avoidance and the wheels first caught the plaintiff’s first, or big, toe on the right foot, just enough so that he could not get it out, although he desperately tried to pull it out because he knew the wheel system, moving a short distance on each forward movement, was inevitably going to catch his foot further. But he just could not remove it and his shouts to the girl who was working with him at the time to turn it off were in vain. So it continued to go further across his right foot, progressively: an outcome that he realised would occur.

8. [8]
   The footwear that the plaintiff had on was described as runners, or joggers.

9. [9]
   The plaintiff described his feeling at this first stage as being in “severe panic”. And, after all toes were finally affected, he described his pain as severe.

10. [10]
    He said that what was going through his mind were thoughts that he was going to lose his foot entirely; and he even considered jumping off the machine, despite it being some two metres above the ground, but rejected that as, potentially, leading to a more serious injury.

11. [11]
    He also thought that there was about one minute’s duration between the time that his foot was first caught until it when it was released, allowing him to finally fall into the compacted cotton.

12. [12]
    Other workers on the farm came and lifted him down from the compactor; but there was a wait until a utility was found to bring him to the local Mungindi Hospital.  After waiting for some 10 minutes for it, and after riding in the back of the utility for the journey, there was, in the end, no doctor in attendance on arrival at the hospital.  Instead, a nurse gave the plaintiff morphine and started to clean the wound.  After about an hour or so the doctor arrived and, clearly, the plaintiff was still in significant pain because the doctor authorised more morphine. 

13. [13]
    After that, the Flying Doctor Service transported the plaintiff to Toowoomba, where he was taken by ambulance to the Toowoomba General Hospital. There, they stitched the plaintiff up, took an x-ray and he woke the next morning in one of the general wards.  At this time, he was still on morphine and described himself as being a “wee bit spacey”.  After being seen that next day, he was released, given some more pain killing medication – which he stated was not very effective – and, eventually, by taxi and bus, he came back to the farm at Mungindi. 

14. [14]
    He described his foot as being then very sore and that he needed crutches to get around. Over the next week or so, he attended at the Mungindi Hospital for re-dressing of the toes.  The pain was still very severe and the toes started to turn black.  At this stage, it was recommended that he go immediately to the Princess Alexandra Hospital in Brisbane, to which he was driven by his older brother, a drive of some 7 to 8 hours. 

15. [15]
    On attendance at the Princess Alexandra Hospital, the severe pain was continuing. In the second week of an approximate three week admission, the second, third, fourth and fifth toes were amputated.  He stated that he was on a steady course of morphine on a drip, the pain being worse when they cleaned the toes every day, with that pain being severe despite the morphine.  Before amputation, he stated that he could smell the developing gangrene.

16. [16]
    It was necessary then to take a skin graft from his right thigh for grafting on to the area of the amputation site. After discharge, he went to live with his older brother who was working on a farm in Wamuran, from where he attended the Caboolture Hospital for check-ups, including dressings.

Physical injuries

17. [17]
    It is common ground between the parties that the only physical injury is that to the right forefoot.

18. [18]
    Regarding the first, or great, toe of the right foot, Dr David Macintosh (the orthopaedic surgeon called by the defendants), upon examining the plaintiff on 9 March 2010, stated that a physical examination of it showed a “full range of movement with no deformity”. This is despite his subsequent summary noting that the plaintiff still had “some weakness of the plantar flexion” of this toe. Dr Macintosh’s oral evidence, stating that the plaintiff had a “normal” range of movement, appears to contradict this “plantar flexion” conclusion. The other specialist orthopaedic surgeon, Dr David Morgan (called by the plaintiff), in his report dated 25 May 2010, concerning a later examination on 24 May 2010, noted, to the contrary, that there was a loss of “20-40%” of normal dorsi flexion and plantar flexion. By late May 2010, the plaintiff had ceased the installation work that he had been doing in March of that year and was undertaking work as a plumber with the Beston Group in Melbourne.  But since the matter was not thoroughly examined as to permanent effects with the orthopaedic specialists, or with the plaintiff, I am unable to conclude that the original catching of the hallux (involving some degloving), or any extra pressure being placed on it during work because of the amputation of the other toes, has led to anything in the nature of a permanent disability concerning it in particular.

19. [19]
    Again, there is no real dispute between the parties that the original incident would have been associated with extreme pain and discomfort and that the suffering would have been heightened by subsequent events up to the time of recovery from the amputations that have been described.

20. [20]
    With respect to the degree of disability resulting from the amputated toes, Dr Morgan’s view was that there was a total loss of 7% of the normal functional capacity of the whole person on the AMA 5 scale. According to the plaintiff, he had an altered ambulatory capacity, difficulty with a variety of activities of daily living and also a reduction in sensory capacity. Dr Morgan noted that such features were directly and causally linked with the incident. He also noted a diminished ability to engage in activities of a bipedal nature, and that running, jumping and walking barefoot would all be hampered.

21. [21]
    For his part, Dr Macintosh concluded that, as at early March 2010: the plaintiff’s condition was stable and stationary, although it was opined that he “should gain increasing strength in the great toe”; he had an 8% impairment of the whole person on the AMA 4 scale; as expressed in oral evidence, his only continuing restriction, while orthotically aided, would be in running “flat out”; and he would have only some “mild restriction” overall.

22. [22]
    Thus, the main difference between the opinions of orthopaedic surgeons is with respect to the extent to which the similarly agreed disability had an effect on the plaintiff’s work capacity. I will deal with this in a separate discussion later. Nevertheless, one aspect of that is the extent to which the plaintiff’s right foot becomes reddened from work-related irritation at the end of the working day. Suffice it for me to say that I accept that the plumbing work presently undertaken by the plaintiff does lead to an irritation of the skin in a way described by the plaintiff. I also accept that at the end of each working day the plaintiff continues to have pain and significant discomfort, although whether the level of that is sufficient to cause, reasonably, a person to permanently cease such work is another question (also to be discussed later).

23. [23]
    With respect to the appearance of the amputation site, the report of Dr Trevor Harris, a plastic and reconstructive surgeon, has been tendered by consent. Interestingly, the opinion of Dr Harris was that the impairment of the whole person was 10%. But he also, expressly, took into account the appearance of the donor site of the skin graft, located on the right thigh. He concluded that it was unlikely that further treatment would be necessary, noting, in particular that the small grafted area measuring 3.5 cm x 2.5 cm was “quite stable”.

Psychiatric injury (?)

24. [24]
    Although the import of the cross-examination by the defendants’ counsel of Dr Eric De Leacy, a psychiatrist (called by the plaintiff), was seemingly to the effect that there might be no psychiatric sequelae in this case, the psychiatrist called on behalf of the defendants, Dr John Chalk, expressed in his written report dated 7 April 2011 that the plaintiff did have “residual symptoms of an adjustment disorder”, referable, in particular, to his conclusion that the plaintiff had earlier developed symptoms of a mild adjustment disorder with depressed mood which had appeared to have improved “to a degree” over time. Furthermore, Dr Chalk concluded that the plaintiff’s condition was stable and stationary and that he had a “permanent impairment”. Although that impairment was determined, in the written report, under PIRS Guidelines, Dr Chalk, in cross-examination, conceded that under the AMA Guidelines he would assess the permanent impairment at 2.5%.

25. [25]
    I accept, for the reasons outlined in detail by Dr De Leacy in his oral evidence, that the appropriate basis for determining permanent assessment is pursuant to the AMA Scale not by a PIRS methodology. In his written report dated 13 September 2010, Dr De Leacy assessed that impairment at 10%. In his oral evidence, he conceded that the forming of a de facto relationship by the plaintiff was a significant factor and that he had expected a modest improvement over the year or two after his examination on 8 September 2010. He opined that an improvement to the level of 5% would be feasible. 

26. [26]
    To the extent that there is a difference in the conclusions reached by the two psychiatrists – even though the difference in the end is between a 5% impairment and a 2.5% impairment once the same scale was identified – I accept the approach of Dr De Leacy because of his detailed explanation of the various aspects of the observations he made in relation to the plaintiff’s mental functioning. In particular, with respect to “affect” (i.e. the level and quality of interaction that the subject has with the interviewer), Dr De Leacy concluded that the plaintiff’s affect was “somewhat constricted”, exemplifying that by reference to his observation that the plaintiff had withdrawn into himself and that, even though he tried to put up a “good front” and be stoical, there was still “a few chinks in his armour (to use the vernacular)”. Dr De Leacy, then, gave particulars of such “chinks”.

27. [27]
    When this aspect was the subject of cross-examination of Dr Chalk, Dr Chalk freely admitted that the plaintiff gave a “somewhat scanty account” of the actual incident that “he probably did not want to relive”, but was unwilling to concede that any different conclusion by him would follow. The plaintiff’s reluctance, in my judgment, is the very matter that is at the heart of Dr De Leacy’s approach.

28. [28]
    Thus, to the extent that there is a discernible difference in approach, although both accept that the adjustment disorder was originally of measurable severity and that some mild depressive symptoms persist, I prefer – for the reasons discussed and for the reason that the plaintiff’s oral evidence showed some discomfiture when relating the factual source of the psychological reactions – the conclusions of Dr De Leacy (as moderated by his oral evidence).

29. [29]
    Nevertheless, even Dr De Leacy stated that it is “debatable” whether the plaintiff needs ongoing psychiatric care, holding that, because of delay, any benefit now would be of a limited degree. Given the extent of the concessions made by Dr De Leacy in his oral evidence, I conclude that the plaintiff is unlikely to benefit from any future psychological therapy, particularly given the existence of his present relationship. This is particularly so where there is no evidence that he is presently on prescribed antidepressants.

Damages for pain, suffering and loss of amenities of life

30. [30]
    Despite the defendants’ submission that the plaintiff has made a “good recovery” from his serious injury, contended to be illustrated by him being involved in a “kick/chase involving a ball” by 7 October 2010 and being involved in activities such as throwing a frisbee by 9 March 2010, it must be understood; first, that the ball was a plastic beach ball struck by the plaintiff’s other (i.e. left) foot and that the plaintiff never asserted that he was incapable of any activity of a recreational nature (although unable to engage in such pre-incident activities as soccer and Gaelic football); and, secondly, that the plaintiff’s social activities are constricted by the post-work pain that plumbing work causes to his right foot. Therefore, I conclude that the plaintiff has suffered significant restrictions in his ability to enjoy the general amenities of life.

31. [31]
    The plaintiff is still a young (26 year old) man, having been born on 2 January 1986, is still relatively fit (despite the incident) and has been significantly deprived of the ability to exercise in an unrestricted way since 1 May 2009 (when he was aged 23).

32. [32]
    The plaintiff has referred me to two Supreme Court decisions as potentially providing a basis for comparable awards of this kind. They are McClintock v Trojan Workforce No. 4 Pty Ltd & Anor [2011] QSC 216 and Cameron v Foster & Anor [2010] QSC 372.  These cases and those referred to in them generally deal with persons who are somewhat older than the plaintiff.  Additionally, many of the potentially comparable plaintiffs suffered a worse psychiatric impairment and had more pain and suffering on an ongoing basis.

33. [33]
    Accordingly, I see no real purpose in canvassing similarities, and distinctions, between all those cases and this case. Necessarily, the cases to which I have been referred do provide guidance; but it is of a general kind only.

34. [34]
    Given the present plaintiff’s relative youth (which means that he has a significant lifetime in which these permanent impairments will hinder him), but also noting the lower degree of pain and suffering, generally, I conclude the appropriate award under this head is $70,000.00.

Interest on past pain, suffering and loss of amenities

35. [35]
    There has been only a relatively short time period between early May 2009 and the time of this decision. Despite that, the nature of the severe pain and suffering and the considerable disruption to the plaintiff’s recreational and social activities has been significant for such a youthful plaintiff. Hence, in the balancing of past and future damages, I conclude that it is appropriate in this case to allocate the sum of $25,000.00 to past loss of this kind.

36. [36]
    At an uncontested interest rate of 2% per annum from early May 2009 until early March 2012, interest is allowed in the sum of $1,420.00.

Loss of earning capacity

37. [37]
    This head of damage was one in which the approach by the parties differed very significantly.

38. [38]
    Before coming to the details of that contest, an issue arose about complaints that the plaintiff has made concerning his back. There is no cogent evidence at all that prior to the incident the plaintiff had any such back concerns.

39. [39]
    Although there appears to be, from the several medical and para-medical reports which touch upon this issue, an inconsistency between reporting of such pain as being either intermittent or persistent, I find that the evidence given in the witness box by the plaintiff to be one of accurate, even if at times reluctant, reporting. I was impressed by his honesty, stoicism and lack of any exaggeration in the evidence that he gave. Consequently, I find: that he does suffer from discomfort in the region of the right sacro-iliac joint posteriorally; that the relative severity remains of a bearable nature but is made worse if he loses balance; that the back exercises suggested to him by a physiotherapist appear to keep the pain at bay; that his discomfort, when occurring, is aggravated by bending, lifting and twisting; and that he does not suffer any sciatic symptomatology.

40. [40]
    In terms of its frequency, I accept what the plaintiff said, under cross-examination, to the effect that the problems start when he jars his back, for example, by missing a step somehow, and that he has the particular problems of aggravation by bending, lifting and twisting only after such an occasion. In particular, I find that when examined by Mr Lee Ng, an occupational therapist, on 3 February 2012 the plaintiff did not complain to that person of back pain at that time, but merely indicated an area where he experienced such pain. Further, the plaintiff did not complain of any pain in his back while in the witness box.

41. [41]
    Taking all the evidence into account, I find that the pain is intermittent, that it occurs only after jarring and that it is only then that the restrictions which the plaintiff mentions occur.

42. [42]
    As far as the orthopaedic surgeons are concerned, Dr Morgan is of the view, expressed in his report dated 1 April 2011, following an examination on 31 March 2011, that there is no causal relationship between the incident on 1 May 2009 and any back pain and that, relevantly, the plaintiff’s future remunerative prospects have not been altered with respect to any lumbar based pain. To the extent that such a conclusion might differ from what the plaintiff has told any medical practitioner, I can only conclude that there may well have been a misunderstanding – perhaps because of his relatively strong accent – about the frequency of the jarring. The examination of the plaintiff by Dr Macintosh demonstrated the plaintiff’s lumbar spine had a full range of movement, with no tenderness or spasm, and that the plaintiff had no difficulty sitting, that his straight leg raising was normal and that there was “no neurological deficit”.

43. [43]
    Accordingly, the conclusions that I draw concerning the back are that it is unrelated to the incident, that it causes no discernable problem at all to his enjoyment of the amenities of life and that, occasionally, there might be a restriction in carrying out physical work that he undertakes. With respect to the last mentioned matter, I do not find that that would lead to any calculable reduction in the amount that might otherwise be awarded for loss of earning capacity productive of financial loss, but I will take it into account in a minor way in determining the effect of adverse contingencies.

44. [44]
    While the plaintiff came to Australia as a backpacker, it was clear from the pre-trip visa that he obtained that he intended to work here, at least for some time.  It has been pointed out that of the 7 original group members who made the trip, holidaying in Thailand on the way here, and then at Bondi Beach, the plaintiff and his older brother are the only ones still in Australia. 

45. [45]
    But, while 2 have returned to Ireland and 1 has returned to England, 2 have gone to New Zealand and are presently engaged in trades there. Even in that group of 7, the plaintiff’s older brother has applied for permanent residency. To focus on the group of 7 is to ignore that the plaintiff has 3 first cousins who are working in Australia, 2 in Sydney and 1 in Perth (it being noted that the one in Perth was also called as a witness, Mr Michael Joyce). In the end, it is a matter of this Court reaching a decision about what it thinks the plaintiff himself would have done but for the incident in question, given the pulls of family ties and of peer pressure, which are exerted both ways.

46. [46]
    The plaintiff quite readily conceded that, initially, he had not committed to any long term residency in Australia.  Despite that, he took a job, first at a strawberry farm and then at the cotton farm in question, for the purpose of satisfying the requirements necessary for him to obtain an extension of one year for his working visa.  It must be remembered that, also, he has been able to obtain work with only relatively short delays, even after his serious injury.  It cannot be doubted that with respect to his intention to work, as well as with respect to his capacity to work hard, he has exhibited those in full measure.  He has also been able to convince an employer to sponsor him in the necessary manner to obtain, as he has now, an extension of his visa until 2015.

47. [47]
    Because of the de facto relationship which he has formed, he has initiated a second foundation for eventually obtaining permanent residency in Australia.  An initial report of Mr Anthony Henjac, a migration agent, tendered by consent, has described the plaintiff’s prospects of obtaining such permanent residency as “very good”. A second report of Mr Henjac has indicated that, as his partner, Ms Faye Toganivalu-Tavani, is currently the holder of an Employer Nomination Scheme, Subclass 801 B, Visa and is in the process of applying for Australian citizenship, she is eligible to sponsor the plaintiff in the near future under the Partner D Visa Category.  On de facto grounds alone, if a couple have been in such a relationship for the entire 12 months immediately prior to them lodging a partner application with the Department of Immigration and Citizenship and if the relationship still exists after two years, there is an eligibility to apply for a permanent Subclass 801 Partner Visa (which in turn allows eventual application for Australian citizenship).

48. [48]
    It is relevant to the decision about what the plaintiff would have done but for the incident both that he had obtained, after a four year apprenticeship, his plumbing qualifications in Ireland and that these have been readily accepted in Australia, permitting him to obtain quickly, when eligible, plumbing work of a kind that he could undertake. The fact that he did not indicate to his employer the extent of his disability was, as he explained, to enable him to first obtain and then to keep such work, and afterwards to convince his employer to sponsor him. The fact that he has been able to keep such work is a tribute to both his capacity to carry out the work effectively and, as I will come to later, his determination.

49. [49]
    It is also relevant: that his older brother, referred to earlier, has continued to work in as a labourer; that a first cousin, Mr Michael Joyce, was as a plumber, granted permanent residency in April 2011 on the basis of his skills; and that a fellow Irish plumber, Mr Declan Haverty, whom he met while employed at Bestons – and also an Irish qualified plumber by apprenticeship – has remained working in Australia from 2008 and has had his working visa extended until 2014.

50. [50]
    Consideration of those particular matters leads me to the conclusion that on a Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 continuum there was a very significant chance that the plaintiff, if not injured in early May, 2009, would have followed a course of remaining in Australia, working as a plumber and becoming a permanent resident.

51. [51]
    What, then, is his actual working capacity? Dr Macintosh expressed the view, quite implacably, that he would have expected the plaintiff to return full work as a plumber, without any restriction, and that he should have been able to do this by 1 June 2010, his assessment occurring on 9 March 2010. Dr Macintosh’s oral evidence admitted no concession at all that the expressed difficulties outlined by the plaintiff in actually working as a plumber, even doing light to medium plumbing work, were valid (at least insofar as they concerned an impaired capacity to work). As already noted, the only concession he made was that the plaintiff would be unable to run flat out. Dr Macintosh stated that he had experience at doing installation work such as that which the plaintiff had carried out at the time of the relevant examination, it being noted that the plaintiff had not then returned to any kind of plumbing work. Dr Macintosh also stated that he had seen people with below-knee amputations working as a plumber. In particular, he did not accept that it was reasonable that the plaintiff would have difficulties associated with prolonged standing, walking, running, jumping, squatting, or carrying heavy objects over uneven terrain.

52. [52]
    For his part, Dr Morgan in his first report gave the opinion that the plaintiff had been rendered less competent in the workplace and that he would indeed have the difficulties which I have just canvassed as denied to be valid by Dr Macintosh. Dr Morgan was further of the opinion that the plaintiff “may find that his employability” in the trade of a plumber is diminished and that remunerative losses “may” ensue, referring to the proposition that he might be setter suited to administrative or office forms of activity, involving formal retraining.

53. [53]
    What I found unsettling about the evidence of Dr Macintosh was his absolute unwillingness to consider, in any meaningful way, a second set of three photographs stated by the plaintiff to have been taken only a few days before trial: see Exhibit 16. In cross-examination, he was presented with a first set of three photographs taken of the right foot, when bare, on a day recently when the plaintiff had not worked: see Exhibit 15. His reaction to that was that those photographs made the foot look “pinker” than what he had observed but otherwise he appeared to have no difficulty in accepting the photographs and remembering, for his own part, that on his examination the foot did not look “red or angry or anything like that”. When presented with the second set of photographs – which I would interpolate shows the foot, particularly in the area of the amputation and grafting, as “red and angry” - and after remarking that the big toe looked “redder around the tip” but that it was not that much different from the other photographs, he stated that he found the colours in the photographs “very deceptive”, explaining that by reference to the second set looking “very pink”, and contending that that could be altered by just the way the photo was taken or the way it was printed, such that he was not convinced that there was any significant difference between them. He only then added that he was “uncomfortable” commenting on the photographs. It should be noted that the second set of photographs (i.e. the photographs showing the foot after a day of the plaintiff working) was first shown in the re-examination of Dr Macintosh by the defendants’ own counsel. Upon being excused from further attendance, he commented to the Court, in a questioning way, whether anyone wanted to hear his research on amputation of the toe.

54. [54]
    Since, as I have already indicated, I found the plaintiff to be straightforward and genuine at all times during his evidence, I conclude that the blunt way in which Dr Macintosh rejected as an unreasonable reaction the plaintiff’s complaints of pain, discomfort and visible skin distress, as well as actual difficulties on the site, is indicative of his lack of understanding of what, on a practical basis, the injury has actually entailed, or how far, after his examination, the foot in fact has continued to “improve”. That conclusion is supported by Dr Macintosh’s attitude to the photographs and by his agitation about not being asked about his research on the amputation of the toe that he had undertaken. When that is contrasted with the approach of Dr Morgan, whose conclusions accord with the reality (as I find it) as recounted by the plaintiff, I find that the overall evidence of Dr Morgan should be accepted concerning loss of working capacity (which includes that evidence in the addendum to the reports of Dr Morgan [contained in Exhibit 1] which relates to a telephone conference had with that specialist on 16 September 2011, and his oral evidence in re-examination). It is to be remembered that the plaintiff had worked very little overtime when Dr Morgan first examined him. At that later time, Dr Morgan gave the opinion that he believed the plaintiff’s position regarding his struggle to undertake the level of overtime done by comparable employees and the plaintiff’s consideration that, because of his injuries, he would be only able to keep up the level of work that he was then “currently” doing as a plumber for the next two to three years, after which he would have to either reduce his working hours further or, preferably, seek lighter work, was reasonable. There was nothing in the cross-examination of Dr Morgan which in any way undermined my view – just expressed – of him.

55. [55]
    It is also necessary to have reference to the reports of Dr Harris, the plastic and reconstructive surgeon. His examination of the plaintiff was made on 7 September 2010. At that stage, the plaintiff had been working for the Beston Group for approximately five months. He had during that period worked – but only for the bare majority of those weeks - eight hours (or slightly more) overtime a week. From a plastic and reconstructive view (referrable to the effects of scarring only), Dr Harris was of the opinion that the plaintiff should be employable in similar situations for the rest of his working life. It must be noted that, as a background to the conclusions reached by Dr Harris, he had noted that the plaintiff was “managing quite well”. But the context is that he had taken a history from the plaintiff which showed that the plaintiff was finding difficulty negotiating slopes, stairs, and ladders and uneven surfaces and that, whilst he was able to do most things required, he had a problem with his balance and had fallen several times, particularly on uneven ground, and became tired when walking down hills. The reference to working “10 hour days”, particularly when, in a sentence before, Dr Harris had reported that the plaintiff was working “some 40 hours per week”, was explained by the plaintiff as being a “miscalculation” on the plaintiff’s part. I accept the plaintiff’s explanation (since it does appear that the additional eight hours, when worked, were on a Saturday, which would not accord with ten hour days).

56. [56]
    The plaintiff’s recounted difficulties so far canvassed have led to particular consequences. The first is that the plaintiff says that his foot, because of the stress and knocks it is subjected to, not only looks like the photographs in Exhibit 16 at the end of a working day but that the pain and discomfort mean that he needs to lie down for some time in order to recover. The second aspect is that the physical effects described mean both that he is considerably slower than his fellow workers and that weekend overtime work is becoming increasingly exhausting and therefore, in his view at least, unlikely to be continued with. The reports of Mr Ng, the occupational therapist, show both that the plaintiff did complain of work difficulties (similar to those recounted by the plaintiff) and that testing conducted by this therapist did demonstrate the problems already referred to.

57. [57]
    It is also clear, despite some reluctance to admit it by the plaintiff, that overtime work, particularly on Saturdays, does have an effect on his social life. This is unsurprising particularly given the relationship that he is now in. This leads into a consideration of the defendants’ submission that the rule in Jones v Dunkel (1959) 101 CLR 298 has application in the failure of the plaintiff’s de facto partner being called as a witness. An examination of the circumstances where the rule can apply was undertaken by McMurdo J in Rossi v Westbrook & Anor [2011] QSC 311: at [30]-[35]. It needs a party to be “required to explain or contradict” something. In Rossi, the plaintiff’s alleged incapacities to work or care for herself led to such a requirement because there were no objective signs to support her evidence of her symptoms and she had a full range of movement. As McMurdo stated, “(r)emarkably”, her husband was not called as a witness: at [30]. Here, there is full support for the plaintiff from a number of specialists, including Dr Morgan and Mr Ng. The specific focus of the defendants’ challenge on this matter went to post-work pain and fatigue. But even if the rule were to have application here, it is not to be inferred that her evidence would have been adverse. Thus, even if her evidence could be taken as not assisting the plaintiff, its relevance to the question of the plaintiff’s incapacity is marginal in the context of all the other evidence that I have accepted as going to that question. Insofar as the defendants have attempted to extend its reach to a failure to call fellow employees or supervisors, the plaintiff, as appears from the record, attempted, albeit unsuccessfully, to have the sole director and shareholder of the Beston Group give evidence by video link.

58. [58]
    Accounting for the later expressed opinion by Dr Morgan concerning the reasonableness of the plaintiff’s concerns and projections for future working capacity, I find that on the acceptance of both the plaintiff and Dr Morgan, the plaintiff will become, increasingly, physically fatigued, and therefore unwilling to suffer the most distressing of such consequences. But I also find that, given the plaintiff’s fortitude and working history, he will continue to undertake lighter plumbing work or its manual equivalent (at least in the form of work sought, though probably not its remuneration), without overtime. This is not to downplay the plaintiff’s intellectual capacity; it merely reflects the nature of his background and the kind of person he is. Exhibit 24 shows that, even now, the plaintiff has only worked for two periods of overtime (8 hours each) since the beginning of 2012.

59. [59]
    What, then, is the plaintiff’s continuing working capacity likely to be? I find that the plaintiff is likely, soon, to reach the stage where, despite having been stoic for a long time since resuming plumbing work in continuing to undertake overtime, he will reach a position where is forced to decline it. There is no evidence before the court which would indicate that a failure to take overtime would lead to any jeopardy insofar as his current employment is concerned. In fact, Exhibit 24 (the Beston group’s documents) suggest, strongly, to the contrary, there being many employees falling into that category. As to whether the plaintiff is likely to stay in the occupation of a plumber, in relative terms the work that he is presently doing is lighter work than that which is presently undertaken by both Mr Joyce and Mr Haverty. Even though he experiences problems, I find that it is highly likely that the plaintiff, because he is a determined young man who has expressed no real inclination to retrain in any other particular occupation and because he, while clearly intelligent, has not had the education which would immediately qualify him to undertake clerical or administrative work, will stay in the area of plumbing. It is also clear that the plaintiff is a competent plumber. Thus, despite his own reservations at the moment about what his future will hold, I find that it is highly likely that he will seek and, subject to some reluctance from time to time by prospective employers, will undertake plumbing work of the lighter kind but that such lighter work may not always be readily available to him. For this reason, the contingencies eventually chosen will have to reflect the fact that there may be times during the rest of his working life when he finds that there are periods when suitable work of a lighter plumbing kind is not available, or open, to him.

Past economic loss

60. [60]
    The first period for the calculations concerning this head of damages is the period that the plaintiff would have continued to work at the cotton farm, but for his injury.

61. [61]
    This period is for 5 weeks. Exhibit 9 shows the plaintiff’s earnings for the 2 weeks prior to the date of the accident. Therefore, on a demonstrated nett loss per week of $1,060.00, the first period yields a loss of $5,300.00.

62. [62]
    Secondly, given the uncontested fact that the plaintiff would have continued to work in a similar kind of job in order to reach the required working period of 88 days for further visa qualification, I find that for the four months after that initial five week period – taking the cessation date as the time that the plaintiff’s workers’ compensation benefits ceased (being on 8 October 2009) – there is a further loss of $17,000.00. There has been a slight discounting in calculating that figure, by averaging down the nett weekly pay to be $1,000.00. As such, it takes account of necessary contingencies.

63. [63]
    The third period is for the time the plaintiff worked as an installer with the insulation company, Ambisol. It is an important commentary upon his attitude that he was the one to engineer the cessation of compensation benefits and to attempt to, and return to, work as soon as reasonable practicable. This work ceased when the plaintiff took up his present position with the Beston Group in Melbourne, Victoria, beginning in mid-April 2010.  Thus, the period is for 26 weeks.  The nett earnings that the plaintiff was paid by Ambisol was in the sum of $6,700.00 (approximately).  Based upon what the plaintiff earned when working, including 8 hours overtime, in the first 2 months after he began with the Beston Group (being a weekly nettt income, including overtime income, of $850.00), the nett income for the such 26 weeks if he had worked as such a plumber would have been some $22,100.00. That is, I find the plaintiff would have worked the kind of overtime that he began to earn with the Beston Group from early June 2010, if he had not been so injured in the incident. Therefore, a nett weekly income of $850.00 is appropriate.  Consequently, the loss that I calculate for this period is $15,400.00.

64. [64]
    The fourth period is from mid-April 2010 to the date of this decision, approximately 96 weeks. It is clear from the material filed that the plaintiff, before he left Ireland, had been working very industriously.  The average weekly income, on a nett basis, that the plaintiff had then been earning, converted from Euros to Australia currency for that time, approximates A$1,250.00. 

65. [65]
    When approaching the task of what the plaintiff would have earned but for the foot injury in the incident, it is reasonable to pay some heed to the past earnings of both Mr Haverty and Mr Joyce. Mr Joyce, the plaintiff’s first cousin, working in Western Australia, has a year-to-date nett weekly income of $1,641.18. 

66. [66]
    Mr Haverty, who, like the plaintiff, works in Melbourne, based upon his most recent payslip dated 15 February, 2012, has a nett weekly pay of $1,657.00 (Exhibit 20).  Nevertheless, it should be noted that, for the work undertaken by Mr Haverty in the 2010-2011 financial year, his nett weekly earnings averaged only $910.00 (approximately): see Exhibit 13. The highest for the 2010-2011 financial year from the Beston Group was $1,085.00 (approximately): see Exhibit 24 and the defendant’s extrapolations from it.

67. [67]
    For this fourth period, I take the nett income per week that the plaintiff could have earned but for the incident as being in the sum of $1,250.00. This is a somewhat reduced amount from the sum submitted by the plaintiff for this period of approximately $1,400.00. It has been chosen because the work undertaken by Mr Haverty, presently, is on a labour hire basis, which, while it contains generous site and other allowances, contains nothing that an employed worker would be entitled to receive by way of benefits covering, for instance, recreational and sick leave. At least to the present date, I find that the work that the plaintiff would have attempted to obtain would have been work that had such employee benefits associated with it. To this end, it should be noted that Mr Haverty worked for the Beston Group from August 2010 through to August 2011. But I accept that the plaintiff, like Mr Haverty would have moved on to better paying work. As for Mr Joyce, he is not in any kind of relationship at the moment, with the attendant demand for an appropriate social life that such a relationship would bring. Additionally, he candidly admitted in cross-examination that money was the most important thing to him, a conclusion that I apply with less strength to the plaintiff, even though he clearly saw a good income as being somewhat important.

68. [68]
    Hence, on the basis selected, taking account of the actual nett earnings of the plaintiff of $76,717.88 to the date of trial, this period would yield a loss of $43,280.00 (approximately).

69. [69]
    Inevitably, the calculation for past economic loss must bring a balancing of adverse and positive contingencies into account over the period of time from 1 May 2009 to the present time, including the fact that a further week has now lapsed since the trial submissions were made. I have, in canvassing the various submissions made concerning past economic loss, already referred to some aspects of such balancing of contingencies. Additional contingencies would include the somewhat remote prospect that the plaintiff may not have decided to continue with his initial idea of permanent residency in Australia.  Overall, I think it is appropriate to make a deduction of 5% only in the overall figure that I have otherwise calculated for the four periods in question.  On that basis, the sum awarded for past economic loss would be $76,930.00.

Interest on past economic loss

70. [70]
    Since the defendants do not appear to dispute that the actual nett weekly workers’ compensation payments are $16,594.53, interest should be awarded on the difference between the past economic loss assessed and that figure (namely, $60,335.47).

71. [71]
    At an interest rate of 5% per annum since the accident, the interest yield is $8,547.52.

Loss of superannuation benefits

72. [72]
    Since, again, it is not in issue that this loss should be assessed on the basis of 9% of the amount awarded for past economic loss, the amount for this head of damages is, therefore, $6,923.70.

Interest on past loss of superannuation benefits

73. [73]
    For the reasons extensively canvassed by McMeekin J in Koven v Hail Creek Coal Pty Ltd [2011] QSC 051, in the absence of detailed actuarial calculations, because there are so many imponderables which impact on any precise calculation of the benefits themselves such that the shorthand method which uses an award that gives, perhaps, “rough justice”, I am not prepared to award interest on this head of damages: at [76]-[78]. 

Future economic loss

74. [74]
    The defendants have submitted that, from an analysis of Exhibit 24 (the Beston Group’s records), the average, excluding the plaintiff, plumber’s income for the financial year 2010-2011 is, for the 18 persons involved, a nett weekly wage of $885.65. As well, the defendants submitted that the plaintiff’s average weekly wage over the same period was $813.38. They therefore submitted that the actual present, and continuing, nett loss per week is the difference between those amounts (namely, $72.27).

75. [75]
    Such analysis is too simplistic. For a start, as analysed by the plaintiff, for the last 23 weeks from 13 September 2011 until 13 February 2012, the average nett weekly wage for the plaintiff has been $780.00 (approximately). Secondly, averaging 18 employees where some of those worked significant overtime and others worked no overtime provides no accurate summation of what the plaintiff would have earned but for the incident, or even will continue to earn. As best, the averaging simply describes some mid-range where overtime is worked for a not insignificant amount of each financial year. That is not what I find the plaintiff’s loss of earning capacity productive of financial loss to be. Rather, the very strong likelihood is that, though the plaintiff will continue to work in some kind of plumbing role similar to that which he has now, he will not be able to earn any significant overtime at all because of its effect, not only particularly to his foot but also generally to his physical wellbeing.

76. [76]
    The evidence of Mr Joyce is that he intends to take up a job with Leighton at Barrow Island.  The indicative terms and conditions, effective 1 July 2011, are set out in Exhibit 22.  They involve working 10 hours per day between 6.00am and 6.00pm, with a half day off every second Sunday, and an entitlement to 9 days rest and recreation leave after the completion of 26 days on site.  For that there are set rates of pay and allowances which are stated in those terms and conditions.  According to Mr Joyce, which is supported by the relevant exhibit itself, the rate per hour is approximately $49.00.  In addition, concerning overtime, if all overtime is worked, it can be calculated that during any period of 26 days a person could work seven days a week, 10 hours a day.  But the terms and conditions stipulate that during the 9 days rest and recreation leave payment will only be made at the employees “ordinary hourly rate of pay (including any all purpose allowances)”.  The figure proffered as an appropriate nett weekly wage from those terms and conditions was $2,724.77. It can be seen that it would be significantly in excess of what I consider that the plaintiff could ever presently achieve.

77. [77]
    As for the plaintiff’s submission that there was strong similarities between the plaintiff and Mr Joyce in terms of their background, family connection, preparedness to work long hours, qualifications and strong work ethic, I find that, although Mr Joyce knew of other pipe fitters who were also intent on working at Barrow Island who were either married with children, or engaged, so far as the plaintiff is concerned, any work of that type that he would have otherwise contemplated doing but for the incident would not have been for any extended period of years. I conclude, from my general observation of him and from my consideration of the psychiatric evidence, that on the whole, while he is determined, he is, and has always been, restrained, if not cautious, in what he undertook. But it must again be built into the balancing of contingencies that he may well have, from time to time, taken up such extremely remunerative jobs.

78. [78]
    Turning, then to, to Mr Haverty as a potentially comparable worker to what the plaintiff would have been but for the incident, I reiterate the conclusion reached above about his restraint. I find that it would be unlikely that the plaintiff would take a labour hire position on any permanent basis, although he could well have taken appropriate, available positions of a like kind from time to time.

79. [79]
    While there would have been no impediment to the plaintiff working anywhere in Australia, including from any reluctance flowing from a relationship such as his relationship with his de facto partner and while I accept that, but for the incident, the plaintiff may well have travelled to find better work (even to remote places), I conclude that he would have, over the longer term, worked in the major metropolitan areas in, as I have indicated, work which would give him both job security and significant employee benefits. 

80. [80]
    The income of Mr Haverty, including various allowances and overtime, averages out over the 24 weeks to the present time at $1,589.00 (approximately) nett per week. The plaintiff’s present nett weekly income, stripped of overtime, is $720.40: see Exhibit 8.

81. [81]
    But, in the end, I find that the plaintiff would have found a balance between working hard (with overtime) and enjoying what distractions permanent residency would bring. Hence, I find it reasonable to adopt the figure of $1,250.00 as the plaintiff’s likely average wage but for the incident. After deducting the figure of $720.00 one is left with a basic nett weekly loss of $530.00.

82. [82]
    On the basis that 67 years of age would be the appropriate retiring age in the future for the person such as the plaintiff, on the 5% table of multipliers, the multiplier for the 41 years is 924.8. Applying that to $530.00 on a nett weekly basis, an initial figure of $490,000.00 (approximately) is reached.

83. [83]
    Obviously, over a timeframe of 41 years, some significant balancing of contingencies must be made, including those to which specific attention has been drawn, but are not mentioned here. There is the contingency that the plaintiff, although only remotely possible, might have decided not to remain in Australia but to return home which, despite his good working record there before leaving, would, on his own evidence, be a place where it might be difficult to find continuous, highly remunerative work. On the other side of the balancing of contingencies, the plaintiff might eventually find that he is limited to semi-sedentary or even permanent sedentary work, where his formal education to the equivalent of grade 10 only might cause a limited range of jobs to be open to him. Yet again, as he approaches the 10 years or so before retirement, he might well have avoided overtime exertions.

84. [84]
    In considering all the above factors, I find that an appropriate reduction for the balancing of contingencies is 25%. Accounting for that, the amount for future economic loss is $367,500.00.

Future loss of superannuation benefits

85. [85]
    On the uncontested basis that this should be calculated at 9% of the amount of the future economic loss, the entitlement under this head of damages is $33,075.00.

Future medical and associated treatment

86. [86]
    The evidence as to the necessity for different sets of orthotics for each of the plaintiff’s work boots, recreational footwear and dress shoes is overwhelming.

87. [87]
    The replacement of the orthotics in the dress shoes will not be required in anywhere near the frequency for those in the recreational footwear, much less for those in the working boots (which should be yearly). Given that the plaintiff has a statistical life expectancy of 59 years, based upon the report of the podiatrist, Mr Darren Stewart, as well on a note of a telephone conference with him on 7 February 2012, I conclude that, on the basis of the standard practice of one pair being replaced annually applying only to the work boots, the average annual cost for the 3 sets would be in the order of $750.00 per annum.  At $14.42 per week, on a multiplier of 1,009.3 (derived from the 5% table of multipliers), a loss in the order of $14,550.00 is calculated. But that includes 18 years after he retires, when the work boots would be largely redundant, although more wear would accrue to the other 2 orthotics. Hence, on balancing, I would allow $14,000.00.

88. [88]
    For ongoing chemist expenses, unchallenged to be in the order of $1.27 per week, the damages would be in the order of $1,280.00.

89. [89]
    For reasons canvassed in detail earlier, I am allowing no amount for psychological counselling.

90. [90]
    Lastly, it is clear that the plaintiff will have to attend, periodically, at a general practitioner. Although no evidence has been lead as to the cost of such a visit, a modest sum in the order of $1,000.00 should be allowed for this aspect of the set of damages.

91. [91]
    In total, damages for future medical and associated treatment add up to $16,280.00.

Special damages

92. [92]
    The agreed Fox v Wood damages are $3,523.00.

93. [93]
    Since the physiotherapy has not been established to have a causal relationship with the incident, no amount is allowed for that charge.

94. [94]
    With respect to chemist expenses, the plaintiff was not challenged on his evidence that the expenditure was in the order of $200.00.

95. [95]
    For past expenses for the provision of orthotics, there is an agreed figure of $800.00.

96. [96]
    For hospital expenses paid by WorkCover, it is agreed that these total $19,008.50.

97. [97]
    It is also agreed that medical expenses paid by WorkCover total $4,179.00.

98. [98]
    It, again, has been agreed that rehabilitation expenses paid by WorkCover total $2,858.24.

99. [99]
    There are also travelling expenses. In the written submissions, the plaintiff has advanced the sum of $1,339.50. The defendant’s counsel led nothing to gainsay that calculation. Observing that travelling was connected with, primarily, treatment in the initial aftermath of the incident, there is every reason to accept that particular figure.

100. [100]
     In total, the special damages amount to $31,908.24.

Interest on out of pocket expenses

101. [101]
     It is not in dispute that the appropriate rate is 5% per annum from 1 May 2009 until the date of decision.

102. [102]
     From discussion had with respect to special damages, the out of pocket expenses are $2,339.50.

103. [103]
     At 5% per annum for the intervening years, interest is calculated at $331.00.

WorkCover refund

104. [104]
     It is agreed that the relevant figure for this refund is $46,163.27.

Heads of damages

105. [105]
     The following is a table of the heads of damages awarded.

Hence, the amount of damages which will form the judgment that the defendants are to pay to the plaintiff is $566,752.19.

Costs

106. [106]
     Since costs’ issues in this proceeding depend upon both offers made under the WCRA and, possibly offers under the Uniform Civil Procedure Rules 1999 (Qld) (and its common law analogue), I will give leave for both parties to file, and serve, written submissions on costs.  I will give each of the parties 7 days to do so.  If, perchance, there is something in one party’s or both parties’ submissions which could not have been anticipated by the other, or others, a small indulgence of further time will be granted.