Kerr v Queensland Rail[2007] QSC 402

SUPREME COURT OF QUEENSLAND

1. Douglas J:  On 10 November 2000 Mr Kerr, who was then aged 26, having been born on 24 June 1974, was injured at work when attempting to compact earth using a machine called a “whacker packer”.  It is a machine that compacts earth by pounding a rectangular hard rubber pad onto the dirt by a petrol driven motor with a handle that is held down by the operator.  It is a heavy tool and was being operated by Mr Kerr in a crouched position under a temporary bridge.  Normally he would stand upright when using it.  While he was crouched over the machine it began to “kangaroo hop”, struck him in the stomach, lifted him off the ground and threw him on to his left side.  He felt a twinge as if he had broken some ribs and found it hard to breathe.  He stopped work on the machine and sought treatment from his general practitioner on the same day.  Liability for his damages is not in issue but the amount of them is. 

Plaintiff’s work history

2. Mr Kerr was working for the defendant, QR, as a track worker at the time of the accident. The work he performed at QR before his accident was heavy labouring work which he loved. It required some heavy lifting, the use of jack hammers, drills, grinders and compactors, another name for the “whacker packer” which caused his injury.

3. He began working for QR in March 1993 and went back to work after the accident as a carpenter’s offsider part time, then in a full time position as a storeman and then into the graphic design room until his position was terminated on 9 May 2003.

4. He had a reasonable work history as a younger man before he joined QR and has since tried to find other work without success. The injury to his back, which he revealed to prospective employers who asked about his health is likely to have limited his attractiveness as a prospective employee. He has tried to work as a console operator at a service station but could not cope with the heavy lifting required when re-stacking shelves. He told Dr Cantor that he wanted to open a small mechanical business and said in his evidence that he would love to do that. He thought he was capable of doing the storeman’s work at QR where he had been placed after the accident and was annoyed when the defendant “retired” him.

5. He has been receiving the New Start allowance since the accident which requires him to seek employment opportunities very regularly, so far unsuccessfully. He has assisted a friend to work on his and his friend’s cars doing “small maintenance” on his and helping his friend with minor mechanical work, particularly by buying parts regularly from wholesalers for him. He also fixed a nephew’s motorcycle with some of the parts he bought, doing the work at home where his friend also worked in a shed on the property where Mr Kerr lived. The work on his nephew’s motorcycle involved pulling its engine apart and rebuilding it. He applied for jobs at places like Clark Rubber, at a service station as a console operator and at one motorcycle accessory shop unsuccessfully. He can do light maintenance work and domestic tasks around the house.

6. A shed on the property where he lives caught fire in July 2002, after his accident. He tried to save a car trapped in the fire and injured his back in the process but that injury did not affect his ability to work for any significant period, perhaps a month or so.

Effects of the accident 

7. He continues to suffer pain at about the mid-back level and says that he can sit or stand in the one place for about an hour. The pain also radiates down his left leg. He can walk quickly, takes analgesics for his pain, costing about $9 every ten or eleven days and continues to see a doctor for his back every now and then. He was depressed for a while after the accident because of its effect on his sporting life, preventing him from playing touch football, indoor cricket and A grade tennis. Nor can he now enjoy motorcycling. He has a son whom he sees regularly but does not live with that child’s mother. He lives with his own mother on a rural allotment.

8. He was filmed in his four wheel drive vehicle two years before the trial with his son in circumstances that he showed he could carry the then five year old upon his hip during a relatively brief period. His son’s weight was not estimated reliably at that age. Dr Campbell thought that he would need to exercise caution in doing something like that and that it would be more feasible for him to do it on a good day or during a good week. The video did not cause him to alter his opinions expressed in his report. A similar view was taken by Dr Day.

9. He said that his comfortable driving tolerance would last for about an hour, but that was inconsistent with evidence about which he was cross-examined. He readily admitted to making long trips on two occasions to Mission Beach in far north Queensland some time after the injury.  He told Dr Cantor, however, that his ability to drive cars was limited to about an hour and that his trip to see Dr Cantor from Beachmere to Noosa was the longest he had attempted.  He explained his ability to undertake the 16 hour trip to Mission Beach by saying that there was a second driver with whom he swapped the task of driving regularly. 

10. These inconsistencies in his evidence were not reconciled very plausibly and make me more sceptical than I otherwise would have been about his residual capacities. Nonetheless the evidence taken as a whole does establish that he has now only a very minor degree of capacity for remunerative work.

The cause of his symptoms – was there a pre-existing degenerative condition?

11. The principal factual issue is whether his damages should be reduced on the basis that he suffered from some pre-existing degeneration in his thoracic spine. Mr Kerr had suffered right lower thoracic back pain on 23 June 1994 when he was treated by Dr Harvey, his general practitioner and was also diagnosed by Dr Harvey as having suffered lumbar muscular strain on 11 March 1996 after he had been using a sledge hammer to take out dog spikes. Neither of those episodes appeared to be likely to have been related to the degenerative changes noticed at T9/10 when a magnetic resonance image was taken of his thoracic spine on 8 January 2001. That image showed a left lateral disc prolapse at T9/10 causing compression of the thoracic spine in its left lateral portion. It was then said to be associated with a degenerative disc. The image of the disc at T9/10 shows that it is a darker colour than the discs between the other vertebrae. The medical evidence was that discoloration was consistent with degeneration or desiccation in the disc.

12. One view of that evidence, taken by two neurosurgeons, Dr Weidmann and Dr Redmond, is that it shows degeneration likely to have been in existence for a significantly longer time than the period of approximately two months since Mr Kerr’s injury, perhaps more than a year. Another view is that it was evidence of pre-existing degenerative changes which would probably have remained asymptomatic had the accident not occurred; see, for example, the evidence of Dr Scott Campbell in his report of 24 May 2007. A third view, that of Dr Todman, was that the degeneration in the disc was caused by the trauma on 10 November 2000 and was capable of attaining the appearance in the MRI over that more limited period of about two months.

13. Dr Campbell, a neurosurgeon, provided reports dated 22 and 24 May 2007. In his opinion Mr Kerr’s prognosis was poor if he were to return to the workforce as a concrete labourer and “guarded to poor” were he to return in any capacity because of his back problem, poor sitting/standing tolerance, inability to lift and bend, lack of education and training in sedentary work and the stigma of a chronic back complaint. He assessed him as suffering from a 12 per cent whole person impairment which was likely to be permanent. He believed that the whole of that impairment was due to the accident on 10 November 2000 and that Mr Kerr’s pre-existing degenerative changes were normal age related changes that were asymptomatic before the accident and probably would have remained that way had the accident not occurred.

14. When cross-examined on that issue in particular he said the following at T. 61 l. 52-T. 62 l.25:

“Well, doctor, could you agree with this proposition? That you may have a trauma which triggers an injury to an already susceptible degenerative disc rather than being caused by trauma alone or indeed by the degeneration alone?-- Well this - this fellow did have trauma to his abdomen which lifted him up off the ground and that's what - that's when he developed his symptoms. So I think, because - because - he had the subject accident, he's developed very localised symptoms to his mid-back and he had the subsequent MR, which showed the disc protrusion. I think there's - there's common ground for a link between those three events.

All right. Would you agree that it is unusual to get a - a ruptured disc at that level as a result of trauma alone?-- I think - I think of all the sites of disc protrusions, the thoracic spine is the least - least common.

Yes?-- And - and that's why I think it is more likely that the subject accident caused the disc protrusion -----

Right? -- -----because you know, if someone has – if someone has an injury to their lumbar spine and they've got a disc protrusion, I'm less likely to make a link because lumbar disc protrusion, you know, have  (scilicet half) the population has got one. And then you'd have to be - what I do, is I try to decide whether it's a significant protrusion or not. If it's a minor protrusion, I just usually say well, there's no link. If it's a significant protrusion then there's more likely to be a link. So this fellow's got a - this fellow's had a trauma to his mid-back. He's got a big disc protrusion. It's uncommon to have this protrusion in your mid-back so it's very - there's a very high chance there's a link between the two.”

15. He was not persuaded that the dehydration evident in the disc some months after the accident was a major point. He believed that the only way one could make a statement about that issue was if there was an MRI scan before the accident which showed that it was dehydrated then; T63 ll 38-54.

16. He agreed that people who engaged in heavy manual work have a higher incidence of back injuries than people who do office work and thought that there was a chance that Mr Kerr could get back into the workforce if he were willing to re-skill at TAFE or a college or accept a job that he did not like to keep his options open.

17. Dr Day, an orthopaedic surgeon, assessed Mr Kerr’s disability as an 8 per cent whole person permanent impairment. He believed that his continuing symptoms down his left leg were probably due to the disc protrusion in his lower thoracic spine. He thought that injury was consistent with having been caused by the trauma caused by the blow to his abdomen by the whacker packer and that his lower limb symptoms were due to the thoracic disc protrusion. He also believed that Mr Kerr was unemployable for the rest of his life. He disagreed with Dr Weidmann’s view that Mr Kerr would be likely to have suffered a similar outcome within a two year period from 10 November 2000 because of a pre-existing condition of his spine. He thought it was speculative.

18. Dr Day had also seen the video of Mr Kerr and it did not cause him to change his opinion that Mr Kerr’s symptoms were probably due to the disc protrusion which he believed occurred as a result of the trauma although he said his trauma was unusual.

19. He also said in cross-examination that desiccation affecting one disc was usually caused by trauma inflammation or infection. He thought that the desiccation was consistent both with trauma and with degeneration occurring over a period of time and referred to a text on which he relied for the view he had previously expressed that thoracic disc protrusions are rare but can occur as a result of trauma. He agreed that disc protrusions in the thoracic spine were extremely uncommon, amounting to only 3 per cent of all disc protrusions in the entire spine but said that they could occur as a result of either spontaneous disc protrusion or trauma. He agreed that the reason they were rare is that at that level of the spine it is well protected by the thoracic cage but that the younger the person the less rigid was that cage. He did not expect that such a protrusion caused by trauma would necessarily be accompanied by a bony injury like a disc fracture. His view was, taking into account what he had observed in 15 years practice, that a thoracic disc protrusion could occur from relatively minor trauma up to very major trauma. He did not agree that it was possible to identify any period within which the plaintiff may have been likely to have suffered a similar injury. He did agree, however, that he could work in lighter occupations if he were to upgrade his skills such as selling small auto parts to customers.

20. The neurologist, Dr Todman, took the view that the accident described to him was consistent with it causing trauma to the spine. He thought Mr Kerr may be able to cope with light sedentary work, initially on a part time basis, but that he would have difficulty obtaining or maintaining any employment in the open work place. He believed he needed assistance with heavier domestic tasks and home maintenance of up to four hours per week.

21. He disagreed with Dr Weidmann’s view that there was a pre-existing condition because Mr Kerr was in good health before his accident, not suffering from any thoracic or lumbar spine symptoms and was engaged in heavy physical work without any restriction. He also believed the accident was consistent with causing an injury to the thoracic spine, subsequently disclosed on imaging, which led him to the conclusion that, in the absence of pre-existing symptoms and of widespread degenerative changes in the thoracic or lumbar spine, there was no indication of any pre-existing condition. He also said that as the injury was a discrete one at T9/10 directly related to his accident of 10 November 2000 there was no justification for any discount of his impairment related to that injury.

22. He disagreed with the proposition that the desiccation or dehydration of the connective tissue was consistent with long standing degenerative changes because of the other alternative explanations. It was his view that the whole appearance at that level could be the effect of the injury.

23. Dr Weidmann’s analysis of Mr Kerr’s injuries relied on the dehydration of the T9/10 disc, which he believed indicated a pre-existing degenerative change earlier then the injury he suffered. That was premised, however, on the belief that the injury he suffered was not major and he found it difficult to conceive how it would apply major forces to the thoracic spine. His view was that thoracic disc herniations are not caused by trauma alone. The description of the injury he reported on 2 February 2006 was of the machine kangaroo hopping and striking Mr Kerr in the abdomen causing him to fall to his left side, rather less dramatic than the actual evidence of the injury. It led him to conclude that Mr Kerr had a 6 per cent impairment of the whole person as a result of his lumbar spine condition, half of which would be due to the pre-existing condition and half to the accident.

24. He also believed that such an injury could have occurred to Mr Kerr within a two year period from the time of the injury on 10 November 2000. He believed that it is highly unlikely that Mr Kerr would have continued to work in a heavy labouring capacity until normal retiring age without developing a problem with his thoracic spine. In a later report of 29 May 2007 he noted evidence from clinical notes of Dr Harvey, Mr Kerr’s general practitioner, that Mr Kerr had suffered right lower thoracic back pain for two days in mid 1994 and in March 1996 described an episode of back pain in the lumbar area. He also formed the view, however, that a recent MRI showed that his disc herniation had completely resolved which led him to conclude that Mr Kerr’s ongoing symptoms must be due to his ongoing degenerative condition which pre-existed the injury. Accordingly he then concluded that Mr Kerr did not have any permanent impairment relating to his injury of 10 November 2000. His viewing of the video of the plaintiff led him to conclude that he had more employment options than he previously thought. He thought he may have limited employment options previously.

25. His view on examining the MRI in his oral evidence was that the darkness or dehydration of the disc shown in the MRI image was something that occurred over a period of time and was highly unlikely to occur within a couple of months. That MRI was taken on 8 January 2001 and became ex. 9. He believed that a trauma could have contributed to the disc bulging but said that it would not have caused the dehydration.

26. The disc protrusion evident in exhibit 9 was no longer apparent in a further MRI taken on 18 May 2007, shortly before the trial which, led him to conclude that the disc herniation which was there had resolved but that there were still degenerative changes at that disc. For that reason he thought it would be difficult to explain Mr Kerr’s leg symptoms by reference to any disc protrusion.

27. The testing he performed of Mr Kerr suggested to him that there was no degree of conscious or unconscious exaggeration of his symptoms by him.

28. He conceded in cross-examination that Dr Harvey’s notes in 1994 related to right sided lower thoracic pain and conceded that it may well be correct that those symptoms had nothing to do with the state of Mr Kerr’s spine then.

29. He agreed that there was a school of thought, contrary to his, that disc protrusion or a disc herniation in a disc which was perfectly healthy before the injury may arise from trauma. He said that his view was that it was very unusual or very unlikely that a disc protrusion or disc herniation would occur in the absence of pre-existing degeneration. He also agreed that it was impossible to say with any reasonable measure of precision when any degeneration of Mr Kerr’s thoracic spine would have become symptomatic. At best he thought it was speculative or a best guess. He also agreed that an injury with sufficient force to bring about the pathology said to have occurred on 10 November 2000 could also have damaged other aspects of the anatomy such as apophyseal joints which could possibly have caused Mr Kerr’s current symptoms. He thought that would be very unusual, however.

30. Dr Redmond shared the views of Dr Weidmann that the dehydration or desiccation of the disc was something which occurred over a period of time but he was unable to say what period of time was necessary for the change to occur from the normal appearance of the disc to the dehydrated appearance of the disc at T9/10. He did say, however, that he thought it would take a year or more rather than a period of a few months to occur. His view was that the disc protrusion was associated with the injury but that the disc was susceptible because of pre-existing degenerative changes. He also thought that the plaintiff, because of his employment, was exposed to a higher degree of risk that an incident like this would incur within a period of a few years.

31. His assumption about the position Mr Kerr was in when the injury occurred was that he would have been standing. In fact, of course, he was crouched over the whacker packer under the bridge to which I have already referred. He agreed that the impact described to him in cross-examination was much more severe than he had understood previously.

32. He had been Mr Kerr’s treating neurosurgeon and had made no mention of degenerative changes in reports to the general practitioner treating Mr Kerr and had told him that the symptoms from which Mr Kerr suffered were entirely attributable to disc protrusion. He had also told the workers’ compensation claims officer at Queensland Rail on 16 February 2001 that the injury was work related and made no mention in that report of any degenerative changes. He could not explain why he had omitted any mention of that possibility in his report although he admitted that he knew that QR would have been looking for evidence about what caused the injury and whether the degenerative changes were a significant contributing factor. Later reports both to the general practitioner and to the workers compensation claims officer by him similarly failed to mention any degenerative changes. He also agreed that if there were degenerative changes he would have expected them to have become worse over the previous seven years if they were naturally occurring and agreed that they had not. He then agreed that Mr Kerr’s injuries were more consistent with the degeneration that was caused by the trauma by saying “it could be”; T109 l. 31. He went on to say that it was probable that, if there were degeneration before the accident in his spine at that level, one would have expected significant complaints of pain beforehand. He further agreed that people could work for many years with degenerative changes much more severe than Mr Kerr’s may have been before the accident.

33. One curious, unexplained feature of his evidence was that, even though he had been the plaintiff’s treating doctor, he refused to confer with the plaintiff’s lawyers when they were preparing the matter for trial, although he did confer with the defendant’s solicitors and barrister by telephone.

Conclusion as to the cause of the disc protrusion

34. It seems to me that the explanations offered by Drs Campbell, Day and Todman are inherently more likely than those proffered by Drs Weidmann and Redmond. The temporal association between the trauma and the “very localised symptoms to his mid back”^[1] provide a logical and plausible explanation for the disc protrusion shown by the scan.  It also seems likely to me that Dr Campbell’s evidence about the link between the trauma and the large disc protrusion in Mr Kerr’s mid-back being more likely because it was uncommon to have such a protrusion in the mid-back makes sense.  The defendant’s argument that the trauma was unlikely to be connected with the protrusion because of the protection afforded by the rib cage fails to convince me that any pre-existing degenerative change actually was the main cause of the problem.  It seems clear on the evidence that such a trauma can cause such injuries to the disc, even if they are unusual, and the coincidence in time between the trauma and this injury persuades me that the injury was caused by the trauma rather than any degenerative changes.  The evidence does not satisfy me to the necessary standard that degenerative changes already existing in Mr Kerr caused his injury because of the possibility that some such changes may occur over a longer period of time than between the injury and the taking of the first scan.  It seems much more likely that the trauma caused the injury. 

35. Both Dr Weidmann and Dr Redmond also proceeded on a misunderstanding as to the force and the nature of the blow suffered by Mr Kerr. Dr Redmond had not mentioned the theory of pre-existing degenerative changes in his earlier reports and admitted that he had never seen degeneration in the thoracic spine of a man of the plaintiff’s age in the absence of trauma. He also conceded that age related degeneration should have worsened over time and that Mr Kerr’s had not.

36. Dr Weidmann’s concession that one could not say with any reasonable measure of precision when Mr Kerr would have developed similar problems in the absence of this trauma also makes it extremely difficult for the defendant to argue that it has discharged its evidentiary burden of showing what the future effects of any pre-existing condition were; see Purkess v Crittenden (1965) 114 CLR 164, 168 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.  Mr Grant-Taylor SC conceded, however, that it was appropriate to apply a discount to the award for future impairment of earning capacity to reflect the prospect that, absent the accident, the degenerative state of the plaintiff’s spine would probably have interfered at some point with his working capacity.  One also needs to consider the fact that his was heavy manual work that may well have affected him physically in any event.  He submitted that a contingencies discount of 25 per cent adequately addressed the exercise required by what was decided by the Court of Appeal in Smith v Topp [2003] QCA 397 at [38].  In my view, taking into account the nature of the work he did, a more appropriate discount percentage would be 30 per cent. 

The plaintiff’s residual earning capacity

37. Apart from the medical evidence that addressed the issue of Mr Kerr’s ability to work now, there was other evidence of his examination by several occupational therapists. Mr Hoey’s view was that Mr Kerr was only capable of occupations in the sedentary range. He was sceptical about the possibility of Mr Kerr starting his own business because of his limited education and work history. In that context he also drew a distinction between Mr Kerr’s possible ability, in doing mechanical work, to tinker at his own pace in a shed compared to meeting the demands of an employer. He did think that it was significant, however, that Mr Kerr had experience as a sales assistant at a hardware store.

38. He was insistent, however, that Mr Kerr was not capable of doing light work, rather than sedentary work, because light work would require him to be able to lift nine kilograms regularly for up to one third of a working day. He was definitely of the view that Mr Kerr was not capable of lifting nine kilograms repetitively for 2.67 hours during a working day which was the standard measure of the United States Department of Labor for light work. He also formed the view that Mr Kerr needed five hours a week assistance for domestic chores around the property where he lived with his mother. He agreed that there were a number of occupations that Mr Kerr could perform physically but pointed to the difficulties with employers taking on older men with bad backs not trained for particular positions requiring trade qualifications.

39. As the recipient of a New Start allowance Mr Kerr was required to engage in job searching very regularly and Mr Hoey thought that it was significant that, in spite of his efforts to seek work, he had been unable to obtain any during the several years since he was laid off by QR. The fact that he was now in a situation where he had been approximately five years out of the workforce was likely to draw the attention of a potential employer to his capacity to do the work very significantly.

40. Mr Blandford took the view that Mr Kerr was capable of light duties but said that if he can only complete work up to a sedentary range he would only be able to work as a small parts mechanical interpreter and only in some positions in that role as some jobs bearing that description varied between sedentary and heavy. Ms Jesser assessed the plaintiff to be capable of doing light work. Mr Hoey was critical of the fact that her testing of Mr Kerr did not persist over the period required by the United States Department of Labor’s standard. She conceded that, when conducting her tests, she did not do them over one-third of the day. I understood her evidence to be that she could measure Mr Kerr’s capacity by progressively increasing the loads he was lifting and she said she required the subject to lift more than three to five times. It seemed to me, however, that Mr Hoey’s testing was likely to have produced a more reliable result because it extended over a longer period.

41. In my view the plaintiff’s residual earning capacity is very limited, demonstrated not only by the testing he underwent and the medical evidence to which I have already referred but by his lack of relevant skills and qualifications and his inability to find work in spite of sustained attempts and an active interest in working, for example, as a small parts mechanical interpreter. He has only been offered two interviews from the numerous job applications he made. It was significant that he felt capable of working as a storeman when he did that work for QR after the accident and stayed in that position for about eight months but has since been unable to find similar work. His injuries and his history since the accident are telling facts persuading me of the conclusion that he is now virtually unemployable.

General damages

42. The injury was major, affecting a young man’s life significantly and leaving him in pain checked by recourse to strong analgesics. It has affected his sporting activities significantly and he has also suffered a psychiatric disorder diagnosed as an adjustment disorder which was more severe after his injury and has gone into remission. The video evidence and the evidence of his ability to travel long distances by car suggest, however, that his disabilities do not interfere with his life at home very severely. The plaintiff’s counsel argued that an appropriate award was $60,000 and the defendants that $40,000 was appropriate, partly based on decisions such as Smith v Topp [2002] QSC 341 and Calvert Mayne Nickless Ltd [2004] QSC 449.  In my view an appropriate award under this head is $50,000.

Past economic loss

43. In this context some comparable employees’ wages were relied on. Their income records were relied on in different ways by the plaintiff and the defendant. The plaintiff treated them as they were proferred, comparable employees. The defendant discounted their incomes because, before the plaintiff’s injuries, they were earning more than he, but no explanation was offered why that was so when they were put forward otherwise as comparable employees. That did not become evident until the submissions and could have been the subject of evidence had the plaintiffs been aware that the defendant regarded the comparable employees as not truly comparable. I think that it is fairer to treat that evidence in the way it was understood by the plaintiff. In those circumstances the plaintiff’s past economic loss was calculated by averaging the comparable employees’ incomes and deducting the plaintiff’s actual income to trial. The result was $262,306 to which I have added an amount of approximately $22,000 to reflect the plaintiff’s loss since trial and have not otherwise discounted the award for the reasons I have already expressed about the causes of the plaintiff’s injuries and my view that it was not shown that he would have suffered the effects of any degenerative condition by now. My assessment of his loss under this head of damages is $284,306.

Interest on past economic loss

44. Mr Grant-Taylor SC argued that interest on the past economic loss should be calculated without taking into account his Centrelink payments. His argument relied on s. 318(2) of the WorkCover Queensland Act 1996 which empowers a court to order payment of interest for damages for actual past economic loss and on  s. 318(3) which provides that damages for actual past economic loss must be reduced by the amount of compensation paid.  He argued that the express provision requiring damages to be reduced by the amount of compensation paid excluded the possibility of discounting the payment of interest as damages by the fact that Centrelink payments had been made.  It seems to me, however, that the general law is that interest as damages is discounted because of the fact that such payments by Centrelink have been made, McGill v Shield Contractors Pty Ltd [1998] 2 Qd R 398, and there is no reason shown why that approach should be discarded simply because this statute does not address the issue specifically.   The amount of Centrelink payments made was $30,218.92.  The rate was agreed to be 5 per cent under s. 318(5) of the WorkCover Queensland Act.  It is now approximately 7.1 years since his accident.  The amount then is $90,200.91.

Past loss of employers’ contributions to superannuation

45. This is calculated as 9 per cent of the past economic loss and becomes $25,587.54.

Future economic loss including loss of contributions to superannuation

46. Here the plaintiff calculated his loss based on the average of the comparable employees’ wages extrapolated until the plaintiff would qualify for the age pension at the age of 65, taking into account announced changes to income tax rates, adding 10 per cent to compensate for the lost opportunity that the plaintiff would have been promoted and discounted by 25 per cent to allow for contingencies. That latter percentage, as I indicated earlier should, in my view, be more like 30 per cent. The countervailing assessment of an increase of 10 per cent to compensate for the lost opportunity of promotion seems fair to me. On the basis that his future loss from now to 30 June 2008 would be approximately $32,000.00 and that his calculated loss thereafter to the age of 65 discounted at 5 per cent per annum would be $906,343.00, my calculation of his future loss is approximately $722,500.00.

47. To that should be added a further 9 per cent for the loss of the employers’ contributions to superannuation, namely $65,025.00.

Future care

48. There is no claim for past care but the evidence supported a likely need for some future paid care which the plaintiff calculated on the basis of two hours per week at $19.42 per hour over 50 years to the age of 83 discounted at 5 per cent per annum, a sum of $37,915.00. The evidence suggested a need for assistance of between four and five hours per week and the claim seems to be justified to me on the basis that some only of it will be likely to be paid care.

Special Damages

49. The special damages were not in issue in an amount of $2,297.30 with interest amounting to $671.00.

Overall assessment

50. The total of these components is then:

Orders

51. Accordingly there will be judgment for the plaintiff for $1,278,502.75.  I shall hear submissions as to costs.