Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hariharan v Vojtisek[2020] QDC 276

DISTRICT COURT OF QUEENSLAND

CITATION:

Hariharan v Vojtisek & Anor [2020] QDC 276

PARTIES:

BALASUBRAMANYAM HARIHARAN

(plaintiff)

v

EVELYN JANE VOJTISEK

(first defendant)

and

ALLIANZ AUSTRALIA INSURANCE LIMITED

(second defendant)

FILE NO:

D27/19

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

30 October 2020

DELIVERED AT:

Southport

HEARING DATE:

28, 29 September 2020

JUDGE:

Kent QC DCJ

ORDER:

  1. (a)
    Judgment for the plaintiff against the defendants in the amount of $269,840.64
  2. (b)
    I will hear the parties as to costs

CATCHWORDS:

INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – RISK OR LIABILITY – BODILY OR PERSONAL INJURY – where the plaintiff was involved in a collision between his vehicle and that driven by the first defendant, insured by the second defendant – where the plaintiff suffered an injury to the cervical spine as a result of the accident – where liability is admitted – where the plaintiff was employed as a folder machine operator in Australia – where the plaintiff, an Indian born Australian citizen, relocated to India after the accident, always intending to eventually return to Australia – whether, but for the accident, the plaintiff would have remained working in Australia for a period of time – whether the plaintiff could have worked in Australia for part of the year, and in India for the remainder – whether the plaintiff was fit to return to work operating a folding machine or other similar form of work after the accident.

LEGISLATION:

Civil Liability Act 2003 (Qld), ss 9, 11, 55

Civil Liability Regulation 2014 (Qld), sch 4

Evidence Act 1977 (Qld), s 92

Uniform Civil Procedure Rules 1999 (Qld), rr 149, 150, 155, 156

Workers Compensation and Rehabilitation Act 2003 (Qld)

CASES:

Allianz Australia Limited v McCarthy [2012] QCA 312

Anderson v Gregory [2008] QCA 419

Ballesteros v Chidlow [2006] QCA 323

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Berry v CCL Secure Pty Ltd [2020] HCA 27

Daniel Peebles v Workcover Queensland [2020] QSC 106

Dare v Pulham (1982) 148 CLR 658

Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490

Graham v Baker (1961) 106 CLR 340

Henderson v Dalrymple Bay Coal Terminal Pty Ltd [2005] QCA 355

Klein v SPD Services Pty Ltd [2013] QSC 134

Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666

Malec v J. C. Hutton Pty Ltd  (1990) 169 CLR 638

Medlin v State Government Insurance Commissioner (1995) 182 CLR 1

Nicholls v Curtis [2010] QCA 303

Petchell v Du Pradal; Pia Du Pradal v Petchell [2015] QCA 132

Purkess v Crittenden (1965) 114 CLR 164

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211

Strong v Woolworths Limited (2012) 246 CLR 182

Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209

Wallace v Kam (2013) 250 CLR 375

COUNSEL:

Mr P Cullinane QC for the plaintiff

Mr G O'Driscoll for the defendants

SOLICITORS:

Macrossan and Amiet for the plaintiff

Moray & Agnew for the defendants

Background

  1. [1]
    The plaintiff claims damages for personal injuries suffered in a motor vehicle accident on 15 February 2017, where there was a collision between his vehicle and that driven by the first defendant, insured by the second defendant.  Liability is admitted, and the matter is defended jointly.
  2. [2]
    The assessment of quantum of damages involves consideration of a number of factors as set out below.  I will summarise the pleadings, the evidence, the submissions and my conclusions including relevant findings.

The Pleadings

  1. [3]
    In his amended statement of claim the plaintiff sets out the relevant background and the occurrence of the accident on 15 February 2017.  The plaintiff’s vehicle was effectively “T-boned” (impacted from the left side) by the first defendant’s vehicle failing to obey a red light. As a result of the accident he is said to have suffered a generalised musculoligamentous and/or soft tissue injury to the cervical spine and an aggravation of mild pre-existing degenerative changes to the cervical spine (being a side impact, the plaintiff would have had less protection from his seat’s headrest than, for example, in a straight front or rear collision).  It is pleaded that he suffers from pain, stiffness, tingling, loss of range of movement and tenderness.  It is said that he has suffered a permanent impairment of five percent of the whole person, amounting to an injury scale value of seven according to the Civil Liability Regulation 2014 (Qld). 
  2. [4]
    The economic loss claim is slightly complex.  The plaintiff is originally from India, but had lived and worked in Australia for many years. It is pleaded that he had, prior to the collision, intended to relocate to India but retain his Australian citizenship thereafter, from about early 2018.  Then he had intended to work about six months of each year in India and six months of each year in Australia.  Since he was unable to continue his employment as a folder machine operator in Australia, because of his injuries, he relocated to India on or about 7 April 2017 and has been unable to continue his previous work.  Thus the loss of the ability to participate in his previous occupation has caused significant past and future economic loss.  It is pleaded that he has attempted other employment which has not been successful.  Thus the loss of the ability to carry out his former occupation has caused significant future economic loss, particularly upon his planned future return fulltime to Australia in approximately seven years from the present.  There is also a claim for future special damages. 
  3. [5]
    The further amended defence pleads that on the defendant’s expert evidence there is no relationship between the subject accident and the plaintiff’s complaints of ongoing symptoms.  It is also pleaded that as at the time of the subject accident the plaintiff had already formed an intention to return to live and work in India, thus his income would have been significantly less than his Australian income.  In any case, his previous employment at his then employer (The Design Group, in Melbourne) would not have continued because of a change of business ownership and the relocation to India.  It is pleaded that the cervical spine injury does not prevent the plaintiff from working as a machine operator in India or Australia, and that the plaintiff retains a capacity to work but is choosing not to do so. 
  4. [6]
    In respect of future economic loss it is pleaded that the accident caused a minor and temporary soft tissue injury which has long since resolved and is thus not productive of loss. 

The evidence

The plaintiff

  1. [7]
    By agreement the plaintiff’s evidence in chief as to the facts relating to quantum was given by way of a “quantum statement”, exhibit 1.

Background and work history

  1. [8]
    In essence, the plaintiff was born in Bengaluru in India; the city formally known as Bangalore.  He completed a year 12 equivalent education and then completed an apprenticeship as a metal machinist, which is the equivalent of a fitter and turner here in Australia.  He has a diploma of mechanical engineering. 
  2. [9]
    He was employed for a number of years in Bengaluru in this capacity.  His older brother had migrated to Australia in 1994, and this was the impetus for the plaintiff to migrate to Australia in 2003 partly, as he says, because he thought his life prospects were better.  It was also apparently important for him to make an impression on his future wife’s family that he had good prospects.  He was then in a relationship with his now wife, Anu; it seems to be implicit that perhaps these expectations were part of the perceived social mores of the plaintiff’s culture.
  3. [10]
    The plaintiff migrated to Melbourne where he found employment as a production operator with the Bosch Group for three months on a casual basis.  He then worked for Dana Spicer Axle in Clayton, Victoria.  He worked for that company for some time. 
  4. [11]
    In August 2005, the plaintiff suffered an injury to his left wrist.  He attended his general practitioner but thought it was merely a sprain.  However the pain did not subside and eventually a CT scan revealed a fracture of the left scaphoid.  He received Workers’ Compensation Benefits and had surgery in May 2006, including fixation of the fracture with a screw. 
  1. [12]
    Further in 2006 he achieved Australian citizenship.  His wife had joined him in Australia.  His sons, born here, are Australian citizens.  The plaintiff now has overseas citizenship of India but has a right to reside there.  The plaintiff gave evidence that he realised by becoming an Australian citizen he was giving up Indian citizenship, but was willing to do so because he was not intending to return to India permanently. 
  2. [13]
    His problems continued with his left wrist and by 2008 he also had some pain in his right wrist.  He consulted his general practitioner, Dr Sandhu, for these continuing problems.  Later the surgical screw was removed from his left wrist, presumably because the previous fracture was now united.  Thereafter, from 2011, the plaintiff continued to have pain in both wrists but he was able to manage it and continue working.  The complaints of wrist pain to his doctor seem to have dropped off after 2012.
  3. [14]
    He continued to be employed at Dana Spicer Axle for 11 years before being made redundant in December 2013.  He thereafter obtained an advanced diploma of logistics, which was a short course of study.  His subsequent employment included working for Slumber Care in Victoria, constructing bed bases.  He then moved to Kiddo Enterprises Pty Ltd as a mail sorter and delivery driver.  He then obtained full time work as a folder operator with Design Sheet Metal which later became known as Design Group.  Although he continued with the delivery work for a time, he later gave it up because of the full time nature of his work at Design Group.  He commenced there on 25 May 2014 and was employed there at the time of the motor vehicle accident. 
  4. [15]
    His duties included operating folding machines to make flashings for civil construction, which included loading metal into a slitting machine and later the folding machine, with the help of assistants.  The metal is moved around on tables but it nevertheless requires significant force.  The loads can be from 4kgs up to 50kgs.  The folding machine was operated by a foot pedal and was programmed according to engineering drawings.  This work involved significant effort with his hands, to manipulate the sheets.  The completed flashings were lifted and stacked onto a trolley.  The work was heavy and consistent, but the plaintiff normally had an assistant. 
  5. [16]
    In 2014 the plaintiff’s father in law passed away; his own father had died in 2012.  His wife and sons returned to India to assist his mother and his wife’s mother. 
  6. [17]
    The plaintiff remained in Australia and during this period would work seven days per week to be able to support the family including his extended family in India.  This also enabled the plaintiff to have two months off work from December 2015 to February 2016.

The plaintiff’s plans

  1. [18]
    Prior to 15 February 2017 it was the plaintiff’s intention to work six months in Australia and six months in India so that he saw his family more regularly.  He did not intend to relocate to India permanently, particularly because of the higher income available in Australia.  The longer term plan was for his immediate family to return to Australia either after his youngest son had completed school at age 17 and/or his wife’s mother passed away; i.e. when the need to remain there receded.
  1. [19]
    The plaintiff said that he discussed with his boss, Warren Da Costa, the possibility of him relocating to Bengaluru and working for the company in that location where there was already a design team based.
  2. [20]
    The plaintiff said that Design Group, his previous employer, has set up a business in Bengaluru.  He said that his plan was to work in that business, alternating between the Indian and Australian branches.  If this had not been possible, he would have continued working for Design Group in Australia and simply had extended holidays in India to have contact with his family. 
  3. [21]
    The plaintiff gave evidence that no previous injuries had been preventing him from working up to the time of the motor vehicle accident.  He says that his average net weekly wage prior to 15 February 2017 was $1,100. 

The accident and its consequences

  1. [22]
    After the accident, the plaintiff said that he was transported to the Gold Coast University Hospital where he had some pain relief and a CT scan and was discharged the following afternoon, 16 February 2017.  He then returned home to Melbourne.  He thereafter had a number of attendances on his general practitioner.  By late February 2017 he was not able to return to work and thus decided to return to India temporarily.  He did so on 7 April 2017.  He had been forced to resign his employment at the end of March 2017, apparently because of the injury. 
  2. [23]
    The plaintiff said that he continues to suffer from neck pain daily, which disrupts his sleep and radiates down his upper limbs.  He has frequent headaches and restricted range of movement, particularly rotating his neck.  The pain affects his mood and he is frustrated and irritable.  Pain relieving medication has not been particularly helpful and he has had some suicidal ideations.  He avoids any lifting or strenuous activities.  Medical treatment in India in the public system is of lower quality than Australia, thus his problems are less treated and more burdensome for him. 
  3. [24]
    The plaintiff said that he has not returned to work as a machine operator since the operation and does not believe he is capable of doing so. Apart from his physical restrictions his concentration is poor. His present financial circumstances are poor, particularly during the current pandemic which has impacted his wife’s business.
  4. [25]
    The plaintiff’s current business, which is a fish store and restaurant, has not been profitable. He works 11am till 6pm.
  5. [26]
    As noted above, the plaintiff’s intention was to return to Australia with his family permanently once his youngest son had finished high school in about 7 years and after his mother had passed away. His mother is 77 years of age and in reasonable health (there is some actuarial evidence that the expected lifespan in India is 70 years[1]); it may well be that caring for his mother does not greatly extend his time in India.

Cross examination

  1. [27]
    In cross examination, the plaintiff agreed that there was no firm offer of employment from his previous employer in relation to the new business in Bengaluru. There had been negotiations with Mr Da Costa, but nothing in writing.
  2. [28]
    The history of the plaintiff’s health, particularly his wrist problems, was canvassed. In summary, there seemed to have been significant wrist problems from 2005 onwards, when his left wrist was fractured. These continued with a number of medical consultations including, eventually, bilateral wrist pain up until approximately September 2012, when the problems were significant enough to have the plaintiff on light duties at work. He also agreed that a rheumatologist had diagnosed him with osteoarthritis in both wrists. The plaintiff agreed that he had a thumb injury in 2014 and a right ankle injury in the same year. He had a WorkCover claim in relation to his original wrist injury and then this was later revived in what seems to have been a personal injuries action which was resolved in January 2018; the rheumatologist’s report (Dr Kostas) was created in that context.
  3. [29]
    The plaintiff agreed that in his work at Design Sheet Metal he had an assistant who helped him carry and move the metal between the various machinery. The weight of the metal varied and with the heavy loads he had the assistance of another worker. He also said that if he had not been able to reach an agreement with his previous employer about spending part of the year in India and part in Australia, he would have remained predominantly in Australia because of the higher wages.
  4. [30]
    Generally the plaintiff impressed me as honest and reliable, not prone to exaggeration and prepared to make reasonable concessions.

Mr Da Costa

  1. [31]
    Warren James De Costa was also called by the plaintiff. He is presently the CEO of Design Sheet Metal and had previously owned the business but sold it in 2015 to the present owner. He says that he has known the plaintiff for eight to 10 years and that the plaintiff had worked in the business for two to three years. He was a very good worker, in the top two of about 20 such workers. He had a good work ethic and turned out work of high quality. He worked usually Monday to Friday, eight to 10 hour shifts. The only injury that Mr Da Costa could recall was a leg injury and he did not recall any wrist problems or other injuries or extended time off work.
  2. [32]
    He said the topic of the plaintiff returning to India was raised two to three months prior to the accident and as far as he was aware the plaintiff had intended to go home to Bangalore. He was aware that the plaintiff had gone to Queensland where the accident occurred.
  3. [33]
    Mr Da Costa said that he did have a general discussion with the plaintiff about casual work at the business for the plaintiff in the future, after he had returned to Bangalore.
  4. [34]
    In describing the work done by the plaintiff, Mr Da Costa said that where there were loads of up to 35 kilograms to be carried, two men were involved. He did say that he received some input from WorkCover Victoria about the importance of workers such as the plaintiff having a proper range of movement in their neck, particularly in a busy workplace where hearing protection was involved; they needed to be able to turn to face other workers for communication.
  5. [35]
    Mr Da Costa also said that there were good opportunities generally for workers with the plaintiff’s skills in Victoria, although this is reduced during the current pandemic.

Cross examination

  1. [36]
    In cross examination, Mr Da Costa said that he had the impression that the plaintiff’s return to India was permanent, with the possibility of some casual work back at the business in Australia in the future. He was not aware of the details of the plaintiff’s termination, but thought it might have been the HR department which organised it. He rejected the idea that there could have been an arrangement where the plaintiff continuing working for the company, on a basis of six months in India and six months in Australia.

Mr Mora

  1. [37]
    A statement was tendered under s 92 of the Evidence Act from Kranthi Kumar Reddy Mora. He is the General Manger at Design Sheet Metal and knows the plaintiff. His evidence is that the plaintiff had a very good work ethic and was a team leader. He said that prior to the accident the plaintiff had told him that he was intending to return to India to his family. He said that the Design Group does have an association with a company in Bengaluru. One of the Design Group’s other employees is now working in the Bengaluru business.

Mr Shivananda

  1. [38]
    A statement was also tendered from Avind Shivananda.  He came to Australia from India in 2004 and, like the plaintiff, is a machine operator.  He met the plaintiff in 2004 through social connections.  He knows the plaintiff as “Bala”.
  2. [39]
    Mr Shivananda himself suffered a serious motor vehicle accident in February 2005 which left him with ongoing injuries and has not been able to work as a machinist; his problems include a neck injury.  He said that to work as a machinist one needs to be fit and capable of heavy repetitive manual work.  He had employment problems for a significant period of time but now works more regularly in security.  His wife, similar to the plaintiff’s, although being an Australian citizen, relocated back to India with their two children because it was expensive and difficult to live in Australia.  Thus he lives part of the year in India with his family and part of the year in Australia earning a more substantial income to finance his family.  His future plans are somewhat uncertain.  Unlike the plaintiff, he has two residential properties in Melbourne which are rented out.  He is of the view that there is a lot of work available to machine operators in Melbourne.  He also says that the plaintiff’s injuries have taken a noticeable toll on him; he seems physically less capable.

Dr Cook

  1. [40]
    Alan Edward Cook, orthopaedic surgeon, gave evidence.  He reported on the plaintiff on 26 September 2018 and then took part in three more recent conferences with the plaintiff’s legal representatives, of which notes were produced.  These documents consecutively were Exhibits 4-7.  When seen on 15 August 2018, the plaintiff complained of a lot of right side neck pain that spreads out to his right shoulder and up the right side of his head.  He had bad headaches.  He had a lot of neck pain initially but now has significant pain at least four days per week, sometimes very severe.  His neck has become stiff.  He has limited movement.  He gets some tingling and numbness down his right arm going to his index and middle fingers and right thumb.  He has been taking medication for pain relief.  The plaintiff’s history was that he could not continue working because of his neck, particularly in relation to an inability to concentrate when in significant pain.  He is right-handed.
  2. [41]
    On examination he had a restricted range of movement and neck pain.  There was tenderness in various parts of his neck and head.
  3. [42]
    A CT scan from 5 February 2017 showed mild degenerative changes at C2-3.  An MRI scan of 2 March 2017 showed some desiccation of four cervical discs and a moderate disc bulge at C6-7.
  4. [43]
    A further CT scan of 13 August 2018 showed some flattening of the normal cervical lordosis (which I understand to be the normal spinal curvature) and some degenerative changes.  Dr Cook diagnosed that as a result of the injury he suffered a generalised musculoligamentous injury and/or soft tissue injury to the cervical spine and aggravation to pre-existing degenerative changes.  The degenerative changes were consistent with his age of 41 years.  Dr Cook opined that the plaintiff was not fit to return to work as a folding machine operator and not fit for any heavy or moderately heavy work particularly if it involved constant or repetitive bending, lifting, carrying, working in awkward or confined spaces or operating tools etcetera causing vibration to his upper limbs and upper body.  He was able to carry out work of a light nature or even light moderate if he was able to vary his activity and posture ideally.  However he was considerably disadvantaged on the open work force compared to a fit worker.  Dr Cook assessed a 5 per cent whole person impairment and as his pre-existing degenerative changes were completely asymptomatic prior to the accident then the whole of the assessment was attributable to the injuries occurring in the accident.
  5. [44]
    Dr Cook had subsequent conferences on three occasions with the plaintiff’s legal representatives, and as outlined above the material includes file notes of those conferences.  He was made aware of the competing opinions of Dr Dickinson, the medical expert for the defendants, and adhered to his own opinions.  He pointed out that the motor vehicle collision involved significant forces to the plaintiff’s vehicle and thus the injury suffered was significant.  Any pre-existing degenerative changes were asymptomatic.  Further, he opined that the pre-existing wrist problems which the plaintiff was suffering from had not caused him significant difficulty in his employment prior to the motor vehicle accident, nor would they for the foreseeable future.  He may have some problems with his left wrist by the mid-50’s, but anti-inflammatory medication and use of a hand support aid would assist him to continue through to his 60’s.

Cross examination

  1. [45]
    In cross-examination he confirmed that the left wrist which had previously been fractured could be a significant problem in the future and the arthritis from which he suffered would progress, albeit more slowly on the non-injured side.  He confirmed that the plaintiff could perform light duties, but his work capacity was not the same as the pre-injury level.  He was suitable for light manual work or sedentary work. 

Anu Mataraj

  1. [46]
    Ms Mataraj confirmed that she and the plaintiff were married in February 2004.  Their two sons were born in 2006 and 2010.  She herself was not an Australian citizen but a permanent resident.  She remains a citizen of India.  She lived here with her husband as a family from 2004 to 2015 and then returned to India to care for aging relatives. 
  2. [47]
    The family plan prior to the accident had been for the plaintiff to return to Australia after the youngest son had completed Year 12 (i.e. about seven years from now).  Prior to the accident her husband was a healthy and strong person but was now quite different, suffering from neck and head pain.  He was less active and his sleep is disturbed.  He is able to manage in relation to his wrist problems. 
  3. [48]
    She confirmed that if not for the crash the plan had been for her husband to work in both India and Australia, while the children completed their education.  However, tertiary education was planned to take place in Australia, with one or both of the parents accompanying the children back to Australia.

Cross examination

  1. [49]
    In cross-examination she confirmed that if at the stage when the youngest son completed high school her mother was still alive, some arrangements would have to be made for her.  The couple previously owned a house in Melbourne and this was sold in approximately 2017.  There had never been a plan to return to India permanently.

Dr Dickinson 

  1. [50]
    The defendants’ case included the evidence of Dr Dickinson.  He also provided a report, Exhibit 10, and two subsequent file notes of conferences.  He examined the plaintiff on 27 August 2018, that is, about 18 months post injury.  His conclusions were that there was evidence on the radiology of pre-existing degenerative change in the cervical spine.  The current symptoms included pain around the right side of the neck with a pulling feeling and pain down to his right shoulder.  Sometimes he has numbness in his index and middle fingers.  Those matters are not related to the accident.  He opines that the plaintiff suffered a soft tissue injury to the cervical spine.  The degenerative changes in the cervical spine were pre-existing.  The doctor said “this does not affect the whole person impairment but can explain some of the symptoms”.  He concludes that there is a zero percent impairment of the cervical spine.

Cross examination

  1. [51]
    In cross-examination, Dr Dickinson confirmed that he attributed the plaintiff’s problems to his pre-existing condition, not the collision.  The proposition was put to him that, logically, this means that in three and a half years post-accident, the pre-existing changes had gone from having no effect to being symptomatic, whereas the occurrence of the accident during that time was purely coincidental.  He nevertheless rejected the proposition that the collision was one of the causes of this manifestation of symptoms.  He also opined that the plaintiff could return to his pre-injury occupation, involving as it did a degree of manual handling, particularly where the heavier lifts involved two people.  He agreed that, for the plaintiff, consistently lifting loads of more than 10kgs would be a problem, however in his view this was unlikely to be related to the collision.  When referred to the information from WorkCover Victoria to the effect that, for workers such as the plaintiff, unrestricted movement of the cervical spine was recommended because it could facilitate getting or giving directions or instructions to and from other co-workers, Dr Dickinson agreed that this did represent a problem.  He adhered to his view that light work was within the plaintiff’s capacity. 
  2. [52]
    In a conference which occurred with the defendants’ legal representatives on 16 September 2020, Dr Dickinson confirmed his opinion that any residual symptoms in the plaintiff’s cervical spine are related to pre-existing degeneration and not attributable to the subject accident. 
  3. [53]
    The evidence also included a bundle of financial material including the plaintiff’s income tax returns and notices of assessment as well as payment summaries.  There was also tendered a bundle of material from the World Health Organisation.  This included the actuarial information previously referred to.  There is also some information about the present pandemic situation in India which is not particularly good, and the nature of the lockdown restrictions in the region where the plaintiff presently lives (Karnataka).  Also included is the Coronavirus daily update for Victoria of 22 September 2020.

The submissions

Submissions on behalf of the defendants

  1. [54]
    The defendants point out the operation of the Civil Liability Act 2003 (Qld), in particular the general principles in s 9 (part of Division 1 dealing with general standard of care) as to breach of duty and the provisions of s 11 (part of Division 2 – causation) setting out the distinction between factual causation (that the breach of duty was a necessary condition of the occurrence of the harm) and scope of liability (that it is appropriate for the scope of liability to extend to the harm so caused; this latter element may be Parliament’s way of dealing with what was previously described as the issue of proximity in tort).  It is submitted that the plaintiff must prove both (bearing in mind that liability is admitted as to the negligence involved in the motor vehicle accident, such that the breach of duty is admitted); no doubt this is correct. Section 11(4) provides that for the purpose of deciding scope, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the defendant. The arguments in this case focus, however, as I understand them, on factual causation, the general theme being, as I understand it, promotion of Dr Dickenson’s opinion that the plaintiff’s condition is caused by degenerative changes rather than the accident.
  2. [55]
    The defendants rely on Daniel Peebles v Workcover Queensland,[2] and the reasoning of Jackson J in that case, dealing with equivalent provisions of the Workers Compensation and Rehabilitation Act 2003.  The reasoning grapples with some of the perennial problems of causation, including whether a subsequent accident breaks the chain of causation; this is, of course, not such a case.
  3. [56]
    His Honour referred to Strong v Woolworths Limited[3], to the effect that the “factual causation” element is a statutory statement of the “but for” test; the negligence must be a necessary condition of the occurrence of the harm[4]. There was also discussion of “material contribution”, possibly relevant to the situation envisioned by s 11(2) of the Act, which need not be further analysed in the circumstances of this case.
  4. [57]
    Reference is made in particular to paras [39] and [40] of the judgment as follows:

[39]  Bearing in mind that the onus of proof of the relevant facts is on the plaintiff throughout, it is apt that the question is framed as whether the harm that in fact occurred would not have occurred absent the negligence. But, without losing sight of the onus of proof, the question can also be framed as whether the harm that occurred would have been suffered in any event.

[40]  The relevant questions conveniently resolve into whether the plaintiff’s pain and suffering and temporary disability suffered in the period following 20 May 2014 for approximately six weeks would not have occurred absent the negligence and whether the plaintiff’s subsequent injury and now permanent disability from 22 December 2014 to the present time and into the future would not have occurred absent the negligence or whether either of those harms would have occurred in any event.”

  1. [58]
    This leads to the defendants’ submission that the plaintiff has not proven factual causation in accordance with the Act and damages apart from general damages and special damages are not compensable.  It is submitted that the evidence with respect to the loss of a chance does not establish an entitlement to economic loss. 
  2. [59]
    It is not completely clear to me what is meant by this submission. There is no issue that the accident occurred and that the defendants are liable for it. Further, the defence admits that as a result of the collision, the plaintiff sustained a soft tissue injury to the cervical spine, with the qualification that this was against a background of pre-existing degenerative change in the cervical spine and carpal tunnel syndrome[5]. Thus the submission must be, as I understand it, predicated on acceptance of the opinion of Dr Dickinson that the plaintiff’s problems are caused by pre-existing degenerative changes rather than the accident, and thus factual causation is not established because the plaintiff does not meet the onus of proving that he has satisfied the statutory “but for” test in s 11 (1) (a) that the breach of duty was a necessary condition of the occurrence of the harm; in other words, the plaintiff’s neck would, in a short time, have been in the same condition without the accident, and the accident only caused minor and temporary symptoms, long since resolved[6]
  3. [60]
    Bearing in mind this reliance on the conclusions of Dr Dickinson, it is submitted by the defendants that the plaintiff’s general damages should be assessed under Item 89 of Schedule 4 of the Civil Liability Regulation 2014 (Qld) (Minor cervical spine injury) and that an ISV of 4 gives a calculation of general damages of $5,760.

Economic Loss

  1. [61]
    The past economic loss is submitted to be problematic for the reasons outlined above.  Firstly it is said that he was planning to return to India sooner rather than later and that losses caused by the inability to continue to work at his previous employment amount to a “loss of a chance” which is simply not made out, particularly on the evidence of Mr Da Costa.  The defendants point to the effective dismissal by the business owner, Mr Bernoni.[7] However this, as I understand it, occurred, at least on the plaintiff’s case which appears uncontradicted, because the plaintiff’s symptoms prevented him from physically doing his work. It is thus hard to see how the termination of the employment represents a break in the causative chain between the injury and the economic loss, absent the acceptance of Dr Dickinson’s opinions.
  2. [62]
    The defendants submit (dealing with the plaintiff’s scenario as expressed in the quantum statement) that there was not a benevolent employer who would allow him to flit backwards and forwards and only work through the busiest times of the year for some months, and that this arrangement would go on regularly and indefinitely.  Given the plaintiff’s return to India, its circumstances and likely duration, the submission is that the assessment of damages during that period is subject to so many contingencies that it is speculative at best.  Extensive reference is made to the statements in the Court of Appeal in Allianz Australia Limited v McCarthy,[8] considering the interaction between s 55 of the Civil Liability Act and the calculation of economic loss. 
  3. [63]
    The section is engaged when earnings cannot be precisely calculated by reference to a defined weekly loss. Broadly, an award in these circumstances requires a satisfaction that the plaintiff 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 matters; s 55(2).   The assumptions and methodology of such an award must be exposed; s 55(3). 
  4. [64]
    In McCarthy, White J referred to Graham v Baker[9] and Medlin v State Government Insurance Commissioner[10] for the proposition that it must be demonstrated that the injured person’s impairment has a resulted in loss in monetary terms.  There was reference to Nicholls v Curtis[11], and inter alia the (trite) statement that “whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss”.  Thus the plaintiff has to prove that his earning capacity has been diminished because of the negligently caused spinal injury, and that the lost capacity will be productive of financial loss.
  5. [65]
    Reference was also made at paragraph [59] of the judgment to Ballesteros v Chidlow[12] where it was emphasised that s 55(3) must be read in the context of whole section including the heading; it is plain that the section only applies to an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. There was reference at [61] to observations by Fryberg J to the effect that the intention of s 55(3) was to promote intellectual rigour in the assessment of damages where loss of earnings cannot be precisely calculated; no doubt a salutary caution.
  6. [66]
    There is also reference at [62] to the reasoning of Keane JA in Reardon-Smith v Allianz Australia Insurance Ltd[13] as follows:

“Section 55(3) of the Act is evidently concerned to ensure that the assessment of damages proceeds in a manner which is sufficiently transparent that the basis of the decision is apparent, both to the parties and to an appellate court. To this end, the provision requires that the methodology and assumptions on which the award is based be stated: it is clear, however, that it does not require an explicit statement of a calculation in which a formula is applied to factual findings.”

  1. [67]
    No doubt all this is correct; the court must do its best in difficult and sometimes subtle cases, and expose the methodology, assumptions and reasoning, which is hopefully a basic tenet of judicial practice.
  2. [68]
    It is perhaps noteworthy that her Honour was in dissent in McCarthy, at least as to the result; President McMurdo and Gotterson J.A., while not in disagreement with the proposition that the trial judge had not sufficiently revealed the basis for a global award for future economic loss, nevertheless concluded, for the reasons they expressed, that the plaintiff was entitled to an award under that heading (consistent with the factual findings by the trial judge which were sufficient for this purpose), albeit a reduced one, whereas White J considered there should be no such award. This is of course demonstrative of the difficulty and subtlety of such assessments, and perhaps exemplifies the propositions that reasonable minds may differ thereon, and perhaps that there may not really be one precise correct answer to such assessments; they may fall in a range.
  3. [69]
    The President quoted at [8] from Malec v J. C. Hutton Pty Ltd 

"… The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. …"[14]

  1. [70]
    Referring to the above statements of principle, the defendants submit that past economic loss can only be assessed in a global fashion and concede an allowance of $5,000 to $10,000. It is not clear how such a conclusion satisfies the requirements of demonstration of the basis of the decision, including the methodology, assumptions and reasoning on which such an award would be based; possibly this is assumed to be the Court’s responsibility.
  2. [71]
    The defendants set out calculations of interest on past economic loss and past loss of superannuation, which are simply mathematical.
  3. [72]
    In relation to future economic loss, the defendants submit that resolution of the conflict between the opinions of Doctors Cook and Dickinson is important. This seems, with respect, correct, if not an understatement. In my conclusion the opinions of Doctor Cook should be accepted. The difficulty with Doctor Dickinson’s opinion is that, as it was demonstrated in cross-examination, it attributes the plaintiff’s problems, which I accept are ongoing, to the pre-existing degenerative changes rather than the (on any view of the events, significantly forceful, side-on) collision. As was advanced in cross-examination, this opinion posits that the previously asymptomatic plaintiff, a good, consistent and diligent worker, went from a position of having no symptoms to significant, ongoing and restricting pain and stiffness, such that he could no longer continue in his longstanding and desired occupation, on what appears to be a permanent basis merely because of the materialisation of the previously asymptomatic condition; and that the forces involved in the accident played no causal role in this, despite the symptoms only manifesting after the accident. I am more inclined, respectfully, to accept the opinions of Doctor Cook on this topic than those of Doctor Dickinson; Doctor Cook’s simply seem to me, in the overall factual scenario, to have more logical force and be consistent with objective facts.
  4. [73]
    The defendants also submit that Dr Cook should not be accepted as to his opinions on the physical demands of the plaintiff’s work, and thus his actual capacity to do same, in that Mr Da Costa gave contradictory evidence as to the manual handling.[15] This submission is understandable and logical, but is to be assessed against the plaintiff’s good work history and Mr Da Costa’s (and Mr Mora’s) high opinion of the plaintiff as an industrious worker; yet the plaintiff was not able to continue in a job he clearly desired to persist in, to support himself and his family. Further, Dr Cook did have Exhibit 9, the plaintiff’s detailed statement as to the physical nature of his tasks, which is not completely consistent with Mr Da Costa’s fairly brief evidence on the topic. There was no reason for Dr Cook not to act on the basis of Exhibit 9.
  5. [74]
    The defendant next submits that there was a lack of evidence of similar work being available to the plaintiff. This seems inconsistent with the evidence of Mr Da Costa, who is experienced in the industry and said that there were good opportunities in Victoria for workers with the plaintiff’s skills; as outlined above, he has known the plaintiff for some time and he was a “great” worker, being in the top two of about 20 such workers, displaying a good work ethic and producing work of good quality. He had no extended time off although he did have a leg injury at one stage.
  6. [75]
    The defendants do, in any case, concede that the plaintiff’s problems might result in a global assessment of damages for future economic loss in a range of $30,000 to $50,000. There are also calculations for loss of future superannuation benefits and special damages are apparently agreed.
  7. [76]
    In further submissions of 8 October 2020, the defendants submit that the plaintiff’s pleaded case, at least for economic loss, fails because he has not established the factual basis for the requisite calculation, referring to Berry v CCL Secure Pty Ltd.[16] The passages relied upon stress the importance of pleadings in defining the issues for decision.
  8. [77]
    It is submitted that the “6 month rotation” scenario (the pleaded case) was never a realistic possibility, on the evidence at the trial. Reference was made to the evidence of Mr Da Costa, as outlined at [36] above.[17] It is also pointed out that there is, in this exercise, more than “conflicting exercises of equal degree of probability” and there should not be mere guessing between rival conjectures.[18]
  9. [78]
    I am not convinced the pleading point is a great obstacle for the plaintiff. As noted above, the pleadings are important in defining the issues.[19] True it is that his ideal predicted scenario may not play out, but the evidence is consistent with the essential elements of the pleading, namely that there is a reduction in earning capacity, likely to be productive of economic loss, in the context of a return to India and a later return to Australia. Variations in the details thereof are not fatal, although it is true that pleadings are important, overall, as outlined. This is further discussed below.

The plaintiff’s submissions

  1. [79]
    As to the pleading point, the plaintiff does not seek to amend his pleadings; where the evidence is somewhat at odds with the pleaded case, but is capable of satisfying the elements of the cause of action, this is not necessary.[20] As was said in Dare v Pulham,   “But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence.” [21]
  1. [80]
    The plaintiff submits that it is for the court to assess damages for lost earning capacity (if proven), including where the loss does not reach the high water mark of the pleadings. This is consistent with the above referenced authorities and with UCPR 156, allowing the court to grant relief outside that specified in the pleadings. This is also consistent with the general theme that essential facts and causes of action must be pleaded; see R 149 and R 150. The requirement in R 155 to plead the nature and amount of damages claimed, including the basis for calculation, was met by the plaintiff in this case; and as the plaintiff submits, R 156 is something of a gloss on this.
  2. [81]
    The plaintiff pointed out that the collision involved significant forces. The plaintiff immediately had neck and chest pain and was conveyed to the Gold Coast University Hospital by ambulance. He was released from hospital the following day.

General Damages

  1. [82]
    The plaintiff understandably relies upon the opinions of Doctor Cook. As noted above, Doctor Cook recorded a number of complaints of the plaintiff relating to the cervical spine as at 26 September 2018.  The plaintiff relies on Doctor Cook’s opinion of a five percent whole person impairment. This results in an assessment of an Injury Scale Value of 7 (in item 88, Moderate cervical spine injury – soft tissue injury) equating to $10,620.

Past Economic Loss

  1. [83]
    For assessment of past economic loss, the plaintiff’s average net weekly wage pre accident was about $1,100.  It is submitted that the plaintiff, as a result of his injuries, has been unable to return to work as a folder machine operator in Australia.  At the date of the collision he had intended to relocate to India as outlined above.  The intention, in the absence of the injuries was to live in India for six months of each year and in Australia for six months of each year.  He moved to India on 7 April 2017 and supported himself and his family through interest on savings and his wife was self-employed.  The seafood retail outlet was commenced in the latter half of 2019 but the business is not yet profitable and the plaintiff does not draw wages.  Thus the plaintiff’s submissions are that in the absence of the injuries he

 would have remained working in Australia until the end of 2017;

 thereafter would be employed as a folder machine operator in Australia for approximately six months of each year at a net wage of about $1,100;

 further that he could work in a similar position in India for the other six months at a net wage of about $300 per week. 

These calculations lead to a claim for past economic loss of $144,950 to the present time; the calculation is set out in paragraph 8 (b) (xi) of the Amended Statement of Claim[22].

  1. [84]
    I am not sure of the evidentiary basis for the weekly wage in India.  It does not seem to be specifically mentioned in the quantum statement. It is also difficult to reconcile the “6 months in each country” scenario with the evidence in this trial as to work availability in Australia; the previous employer would not seemingly have been willing or able to accommodate this, as outlined above.
  2. [85]
    In any case, the plaintiff’s submissions continue that in a factual scenario more favourable to the defendants, to the effect that the arrangements with the plaintiff’s employer did not result in employment with that business in India, the alternative would have been that the plaintiff would have worked for 10 months of each year in India, still returning for two months per year in Australia to apparently do casual work which was indicated to be possibly available by Mr Da Costa.  The claim on this basis is set out at paragraph 19 of the plaintiff’s written submissions totalling $82,344.
  3. [86]
    The plaintiff correctly concedes that he must demonstrate that his earning capacity has been diminished by reason of the injuries sustained in the collision and, further, the diminution of earning capacity must be productive of financial loss (i.e. that he would otherwise have exercised the capacity), referring to Graham v Baker and Medlin v State Government Insurance Commission (supra).  I do not understand these principles to be significantly in dispute between the parties, as discussed above.
  4. [87]
    The plaintiff, it is submitted, establishes these matters by his own evidence and that of Dr Cook.  Reference is made to paragraphs 87 to 88 of the plaintiff’s quantum statement and the opinion of Dr Cook at page 9 of his report:

“(The plaintiff is) not fit for any form of work that (is) of a very heavy, heavy or even moderately heavy nature especially if this involved constant or repetitive bending, lifting, carrying, working in awkward or confined spaces or operating any tools, plant or equipment especially if this caused vibration to the upper limbs and upper body.  It is felt that he would be able to carry out work of a light nature or even light moderate nature if he was able to vary his activity and posture on a regular basis throughout his working day as well as being able to vary his activities.  It is felt however that in the open workforce market, (the plaintiff) would be considerably disadvantaged especially when he discloses his injuries and his persisting restrictions and limitations.”

Dr Cook’s evidence is that he is aware of the work typically involved in operating a folding machine in a sheet metal facility.  He is aware of such matters from histories of former patients and generally his knowledge of the industry.  As noted above, he had already been provided with a handwritten statement from Mr Hariharan as to his typical work duties, Exhibit 9[23].  Dr Cook’s opinion is that Mr Hariharan is no longer capable of such work as a result of the injuries from the motor vehicle accident.

  1. [88]
    The plaintiff understandably relies on the opinion of Dr Cook that any pre-existing degenerative changes in the plaintiff’s cervical spine, as revealed on radiology, were asymptomatic as at the date of the collision and no more than consistent with his age.  Thus where the defendants assert that the pre-existing condition would have prevented or at least impacted on the plaintiff’s ability to carry out his employment into the future the defendants must, as the plaintiff puts it “disentangle the causes” of the plaintiff’s current status; Klein v SBD Services Pty Ltd[24] where McMeekin J said:

[257] I am here required to make a judgement on hypothetical possibilities – what might have happened had the subject injury not occurred. The applicable principles were explained in Malec v J C Hutton Pty Ltd.

[258] Where the defendant alleges that a pre-existing condition would have brought the plaintiff to a particular state of health irrespective of the supervening injury an evidential burden is placed on the defendant to disentangle the causes: Watts v Rake; Purkess v Crittenden; Hopkins v WorkCover Queensland; Smith v Topp. However the exercise of “disentanglement” is more easily achieved where “the court is required to evaluate possibilities … not proof on a balance of probabilities”: Seltsam Pty Ltd v Ghaleb.

[259] Before reaching that point the plaintiff must first show that the present incapacity results from the defendant‘s negligence. Purkess is usually cited for the proposition that the defendant may not merely suggest but must show with “some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be”. However the pre-requisite to that proposition is that the “plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence” and the persuasive burden remains on the plaintiff “upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.” 

[260] That prima facie burden is usually discharged by the plaintiff pointing to the difference in his condition before and after the injury event. Here the plaintiff was capable of working in arduous physical work both before and after the subject event and demonstrated that capacity for 18 months. (citations omitted)

  1. [89]
    In this case, the plaintiff’s evidence is that the difference in his condition before and after the injury event was quite marked, and unlike Mr Klein he was not able to work on for 18 months.

Future Economic Loss

  1. [90]
    The plaintiff further submits that the evidence of Dr Cook is that the plaintiff may have had wrist problems by his mid 50’s but with aids could continue in manual work until his mid 60’s. He submits for an assessment of loss on the basis of splitting his time between Australia and India, in the past and for seven years into the future; and for the future beyond that, on the basis of being in the Australian labour market. For the next seven years, this is calculated at $650 per week, amounting to $201,110 (paragraph 8 (d) (ix) of the Amended Statement of Claim; and thereafter $750 per week for 20 years, discounted by 15%, amounting to $301,920, plus superannuation. 

Consideration and conclusion

General Damages

  1. [91]
    As I have outlined above, I do not consider the pleadings point to be an obstacle to the plaintiff’s recovery of damages on a basis broadly consistent with the essential elements of his pleaded case, even though some of the particulars vary according to the evidence at trial. Further, I accept the opinions of Dr Cook in preference to those of Dr Dickinson, for the reasons expressed.  In my view, the plaintiff’s submissions should be accepted as to the assessment of the injury scale value of seven, resulting in general damages of $10,620.

Past Economic Loss

  1. [92]
    In relation to past economic loss, the plaintiff does not concede that the case falls into the category of those covered by s 55 of the Civil Liability Act, because precise calculations are possible. This may or may not be so; in any case, it is prudent to be as precise as possible and in making such an assessment, as outlined above, it is necessary to set out the assumptions, methodology and reasoning; thus satisfying the requirements of s 55 whether or not this is strictly necessary (I am inclined to the view that it is).
  2. [93]
    As concluded above, the plaintiff suffered a significant injury leaving him with a significant degree of permanent disability.  I do not accept that his current difficulties are attributable to pre-existing degenerative changes, but rather to the accident.  Thus the plaintiff has satisfied his onus of proof in bringing himself within the provisions of s 11(1)(a) of the Civil Liability Act in relation to the question of factual causation.  I further conclude, in accordance with the evidence of the plaintiff and Dr Cook, as submitted on behalf of the plaintiff, that he is prevented from returning to work, at least on a fulltime basis, operating a folding machine in a sheet metal type of facility and that, as Dr Cook opines, he is not fit for any form of work that was of a very heavy, heavy or even moderately heavy nature especially if it involved constant or repetitive bending, lifting, carrying, working in awkward or confined spaces or operating any tools, plant or equipment especially if this caused vibration to his upper limbs and upper body.  He seems to be able to carry out work of a light nature or even light-moderate nature if he is able to vary his activity and posture on a regular basis throughout his working day as well as being able to vary his activities. 
  3. [94]
    I next make the assumption that, in accordance with the plaintiff’s evidence, but for the accident he would have remained in Australia working in his previous employment until the end of 2017.  The accident prevented him from doing so, particularly where his employer dismissed him for being unable to return to his previous work.  As noted above, the plaintiff previously had a good work history and was highly regarded by his employer, and this is demonstrative of the fact that the injury was significant and prevented continuation of his work as a folder machine operator. 
  4. [95]
    Thus in my view, the first component of the plaintiff’s claim for past economic loss, as set out in para 8(b)(xi)(a) of the amended statement of claim, is established.  This amounts to $50,050. 
  5. [96]
    Thereafter, consistently with the evidence I accept, I make the assumption that the plaintiff would have continued with his intention to divide his time between India and Australia.  However, the defendant submits, correctly in my view, that the pleaded case of the “six months in each country” scenario is not established by the evidence; thus the assumed set of facts could not go so far. Nevertheless, I do accept that an alternative scenario is likely, as submitted on behalf of the plaintiff, that the plaintiff would have been able to work for 10 months of each year in India and two months of each year in Australia, that is, on a casual basis at more busy times of the year:
  • in the trade for which he was qualified and experienced and well thought of;
  • in which there has until recently, been a significant demand for tradesmen;

in the absence of his injuries.

  1. [97]
    Using the methodology advanced on behalf of the plaintiff, the loss calculated in this way would be $1,100 per week times eight weeks per annum, together with Indian earnings of perhaps $12,000 per annum ($300 per week times 40 weeks).  This amounts to $20,800 per annum, or $400 per week.  If this loss were allowed until the present time, from 1 January 2018, a period of 145 weeks, it would amount to $58,000.  However, this calculation does not recognise the plaintiff’s residual earning capacity in India, which for the purposes of future economic loss calculations, the plaintiff estimates at $100 net per week (on the basis of some success in the retail seafood business).  Accepting, therefore, that the plaintiff has, and has had, a residual earning capacity, even whilst being in India, since the accident, it seems reasonable to estimate this at $100 net per week.  This is because, although it has no doubt been reasonable of the plaintiff to attempt to move into the retail seafood business, it is nevertheless likely that his residual earning capacity, within the range of tasks as discussed by Dr Cook, could have been exercised in other occupations between the time of the accident and the present.  This assumption would reduce the loss to $300 per week. 
  2. [98]
    Further, it seems clear on the evidence of Mr Da Costa that employment opportunities in the metal working industry, certainly in Victoria, have been greatly reduced by the current pandemic.  It seems likely that the plaintiff’s ability to exercise his earning capacity, in India, in recent times would have similarly been drastically reduced in any case (and maybe for some time into the future). It is reasonable to assume, for the purposes of past economic loss, that the reduction would have taken effect by February 2020, when the effects of the pandemic began to take hold.
  3. [99]
    In these circumstances, then, in my conclusion the plaintiff’s past economic loss from 1 January 2018 to the present, should be calculated at a rate of $300 per week for 108 weeks (i.e. up to February 2020, when the pandemic would have prevented an immediate return to Australia for work, and probably reduced Australian work opportunities as well), amounting to $32,400.  Together with the original eight month period, this totals $82,450.  Interest thereon at 0.24% per annum for three years amounts to $593.64.  Past loss of superannuation on the Australian component only ($50,050 + $8,800 for 3 years, i.e. $26,400, total $76,450) at 9.5% amounts to $7,263. 

Future Economic Loss

  1. (a)
    While still in India
  1. [100]
    In relation to future economic loss, it seems to me that the contingency of the present pandemic could affect the plaintiff’s future earnings for perhaps one further year.  Thus if a weekly loss of $300 were projected for six years into the future, on the 5% tables, the present value thereof amounts to $81,420.  When allowance is made for this amount to be deferred by one year, the adjusted figure is $77,512.  The Australian – earned component (for which superannuation would be paid) is $43,923 ($8,800 per annum = $170 per week, capitalised on the 5% tables for six years, deferred for one year).
    1. (b)
      After return to Australia in seven years’ time
  2. [101]
    At that stage the plaintiff will be 50 years of age, and in my view, the degenerative changes in his spine, together with the wrist problems, would have in any event begun to reduce his earning capacity in the physical tasks in which he was engaged.  The plaintiff is an industrious person and, as in the case of his friend Mr Shivananda, is likely to be able to find work in less physically demanding occupations, but probably at lower rates of earnings compared with the field in which he is trained and experienced.  It seems likely that the plaintiff will therefore suffer a continuing weekly loss of $300 from age 50 for 10 years.  This should be discounted by 15% for the contingencies of life, amounting to $105,290. This is again a deferred loss, and will not commence until seven years into the future.  Thus its present value is $74,861.  The total for future economic loss is therefore $152,373. Future loss of superannuation entitlements, again on the Australian component ($43,923 + $74,861 = $118,784) at 11.4% amounts to $13,541. 

Special Damages

  1. [102]
    The defendant (subject to the dispute as to the medical evidence) agrees on past special damages of $1,000 and future special damages of $2,000. I consider these amounts to be appropriate.
  2. [103]
    In all the circumstances, therefore, the assessment of the quantum of damages is as follows:

General Damages

$10,620

Past Economic Loss

$82,450

Interest Thereon

$593.64

Past Superannuation

$7,263

Future Economic Loss

$152,373

Future Superannuation

$13,541

Past Special Damages

$1,000

Future Special Damages

$2,000

Total

$269,840.64

  1. [104]
    There will be judgment for the plaintiff against the defendants in this amount. I will hear the parties as to costs.

Footnotes

[1]  Exhibit 11

[2]  [2020] QSC 106.

[3]  (2012) 246 CLR 182 at [18]-[20]

[4]  His Honour also referred, at [35], to similar statements in Wallace v Kam (2013) 250 CLR 375

[5]  Paragraph 2(a) of the Further Amended Defence

[6]  As pleaded in para 3(a) of the Further Amended Defence

[7]  Paragraphs 61 and 62 of the plaintiff’s quantum statement.

[8]  [2012] QCA 312 between paras [47] and [62]

[9]  (1961) 106 CLR 340

[10]  (1995) 182 CLR 1

[11]  [2010] QCA 303

[12]  [2006] QCA 323

[13]  [2007] QCA 211 at [37]

[14]  (1990) 169 CLR 638

[15]  Defendant’s further submissions, paragraphs 18-20

[16]  [2020] HCA 27

[17]  See T1-53 ll30-45

[18] Klein v SPD Services Pty Ltd [2013] QSC 134 at [122]

[19]  The plaintiff refers to Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517; Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209 at [38] per White J; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287

[20] Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666 at 668; Henderson v Dalrymple Bay Coal Terminal Pty Ltd [2005] QCA 355 at [31]; Anderson v Gregory [2008] QCA 419 at [30]; Petchell v Du Pradal; Pia Du Pradal v Petchell [2015] QCA 132 at [39]

[21]  (1982) 148 CLR 658 at 664

 

[22]  I presume the reference in paragraph 8 (b) (xi) (g) is intended to be 28 September 2020

[23]  See Dr Cook’s file note of 12 June 2019

[24] Supra at footnote 17

Close

Editorial Notes

  • Published Case Name:

    Hariharan v Vojtisek & Anor

  • Shortened Case Name:

    Hariharan v Vojtisek

  • MNC:

    [2020] QDC 276

  • Court:

    QDC

  • Judge(s):

    Kent QC DCJ

  • Date:

    30 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.