Kirchner v ITT Water & Wastewater Limited
[2010] QSC 413
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- Kirchner v ITT Water & Wastewater Limited[2010] QSC 413
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Kirchner v ITT Water & Wastewater Limited[2010] QSC 413
Kirchner v ITT Water & Wastewater Limited[2010] QSC 413
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 5 November 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7-8 September 2010 |
JUDGE: | McMurdo J |
ORDER: | Judgment for the plaintiff against the defendant in the sum of $315,281.28. |
CATCHWORDS: | DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – RE-EMPLOYMENT OF WORKER – where the plaintiff was injured in the course of his employment by the defendant and suffered head injuries – where the defendant admits liability – where the plaintiff worked for the defendant for a year after the accident, with earnings similar to before the accident – where the plaintiff subsequently left the defendant’s employ and has since had multiple jobs, each less remunerative than when he was employed by the defendant – whether the plaintiff’s reduced earnings are a result of his injuries. |
COUNSEL: | M Grant-Taylor SC with A L Brook for the plaintiff R Myers for the defendant |
SOLICITORS: | South Queensland Law for the plaintiff Hede Byrne and Hall Solicitors for the defendant |
[1] The plaintiff, Mr Kirchner, was injured in the course of his employment by the defendant company on 5 September 2006. He fell down a manhole into a concrete sewerage pump station. He suffered a fracture of the occipital region of his skull and a frontal subdural haematoma with associated contusions.
[2] He was hospitalised for about a week. No surgery was required. He was then 26 years old. He returned to work after a couple of months and stayed with the defendant, although performing lighter duties, until the end of 2007. He has had other work since. But his case is that he is unable to work a full week, at least week in week out, because he suffers headaches, dizziness, loss of balance and has impaired memory and concentration. What is clear is that he has lost completely his sense of smell.
[3] The defendant admits liability and that Mr Kirchner suffered those head injuries. For this assessment of damages, the issues are essentially the extent of impairment of his earning capacity and the losses from that impairment.
[4] Mr Kirchner left school at the end of grade 11. He did some labouring work and also some work in the retail field. But until he worked for the defendant, his work history was poor. For the two or three years prior to then, he was largely unemployed. He commenced with the defendant in September 2004, working effectively as a labourer. He worked as a subcontractor, although he was full time with the defendant. I will return to the evidence of witnesses who worked with him, but overall he had good work history with the defendant. He found this job through his brother, who also worked for the defendant and who had commenced an adult apprenticeship to become qualified as a mechanical fitter and turner. He had the prospect of such an apprenticeship himself when his brother became qualified. That would have reduced his income in the short term, but provided him with the prospect of promotion. In previous employment, he had obtained licences to drive equipment such as a forklift and front end loader. Otherwise he was unskilled.
[5] He was discharged from hospital on 12 September 2006 and returned to work on 25 October 2006. At first he worked a few hours a day, doing lighter work that involved little lifting. Mr Kirchner’s evidence was that he was getting frequent headaches and dizzy spells. He was gradually moved on to other work such as repairing pumps in the workshop. Eventually he went back to doing some work for the defendant outdoors on construction sites, including around trenches. He found that the outdoor work and the sunlight made his headaches much worse. For a short time, he worked in the defendant’s storeroom and then worked more successfully in the workshop. He remained in that work until December 2007 when he decided to leave the defendant’s employ. By that stage, he had been back at work full time for about 12 months. He says that he left because he felt that he could not cope with the work any longer so he decided to try some other work.
[6] At the beginning of 2008, he moved to Toowoomba and commenced work as a car salesman. He worked there until 23 August 2008. He says that he continued to suffer headaches and memory lapses and often felt run down.
[7] On 1 September 2008, he took a new position with a company called Wurth Australia, again as a salesman based in Toowoomba. This required him to often drive long distances. Wurth produced workshop consumables, supplying to engineering and mechanical workshops and similar businesses. As the work built up, he says he became more and more run down, his headaches became more frequent and severe and he had trouble driving in the daylight. Because of these difficulties, he says, he decided to leave that employment which he did on 8 May 2009.
[8] Immediately after leaving that job, he performed some casual work for a friend in a car detailing business and also some casual work for the parents of the woman who is now his partner. They have farming and grazing properties in New South Wales, upon one of which he now lives. Since about the middle of 2009, he has had relatively little work. He does casual work from time to time on those properties, for which he is sometimes paid a commercial rate. He also does work at the local stockyards when it is available and other casual work in the area. But it appears that there is relatively little work available to him in this part of western New South Wales. There is evidence supporting his own account that whilst he can sometimes do demanding physical work in the outdoors on these properties, he becomes very tired and suffers headaches such that he could not do that work on anything approaching a full time basis.
[9] Despite his injury, he was able to return to and hold a job with the defendant at effectively the same level of income. His subsequent full time employment, in those two positions as a salesman, was not as remunerative. But he has earned very little since leaving Toowoomba and moving to New South Wales. His earnings before and after the accident were as follows.
[10] In the year to 30 June 2005, his earnings before tax and expenses were $23,824. His allowable deductions were $8,694 resulting in a taxable income of $15,130. As already noted, he was purporting to work as a subcontractor rather than as a PAYG employee and as he commenced employment with the defendant in September 2004, he was not employed full time throughout that year.
[11] In the following year, his gross income (all received from the defendant) was $48,102.50 from which he was allowed certain deductions resulting in a taxable income of $36,329.
[12] Then followed the tax year in which the accident occurred. In the period from 1 July 2006 until the accident (67 days), he was paid $12,367 by the defendant, again upon a subcontractor basis. When he returned to work, he became an employee of Drake Australia Pty Ltd, which provided his services to the defendant. In that capacity and for the 240 days remaining in that tax year, he derived gross income of $32,082 from which $9,385 tax was withheld. In that tax year, he had work related expenses of $3,650 for a car and some clothing. His gross income, before tax and expenses, was higher in that part of the year which preceded the accident, measured upon a daily basis. However, this was not because his pay was reduced on account of his injury and the difference in his duties after he returned to work. The explanation seems to be mainly that his services were now being provided through Drake Australia Pty Ltd. And it also appears that his income within those 67 days prior to the accident was somewhat higher because he was then paid for some work which he did in the previous tax year. Overall then, his impaired earning capacity resulted in a loss within that year (to 30 June 2007) only for the period in which he was not working.
[13] In the 2008 year, his income before expenses and tax while he was still with the defendant was $26,810 and his income with the car dealership was $20,696. His gross income with the defendant during that year was therefore of the order of $1,000 per week. This is to be compared with about $935 per week in the previous year for the period after he had returned to work. His weekly income for the first 67 days of the 2007 year was about $1,290 per week. Again, the difference between his earnings in the 2008 year whilst he was with the defendant and his earnings in the pre-accident period in the 2007 year did not appear to be attributable to an impaired earning capacity. Thus, his income whilst (effectively) employed by the defendant until he left at the end of 2007 are a fair indication of the income which he would have received regardless of his injuries.
[14] In the year to 30 June 2009, he had gross earnings from the car dealership of $1,779 and then from Wurth (from 1 September 2008 to 8 May 2009) of $25,197. He also had gross earnings in that year from other sources of $2,348. As already noted, when he left Wurth, he did some casual work as a car detailer and also for his partner’s parents.
[15] In the 2010 year, his gross income appears to have been $11,176 from which he was allowed deductions of $5,327. His income since has been much the same as in the 2010 tax year.
[16] Mr Kirchner’s case is that he found the full time work with the defendant too burdensome after the accident and he had no choice but to give it up. He says that he lacks the capacity to do full time work even if much of it is done indoors. He is also impaired by being unable to perform satisfactorily in work as a salesman, at least where that involves any significant self-management and organisational skills. He can work well under supervision, but he says he found the work in those sales positions at Toowoomba ultimately to be too difficult because when placed under the pressure of any significant workload, he developed headaches, tiredness and lack of concentration and memory. In their ultimate submissions, counsel for Mr Kirchner conceded that he has some residual earning capacity, but submitted that this was worth no more than $300 per week.
[17] For the defendant it is argued that there is no significant impairment of earning capacity. It is said that Mr Kirchner proved that by his work after the accident until he left the defendant. It is argued that he left the defendant, not because of difficulties in performing the work, but because he wanted to try some other line of work and also because he wanted to join his partner in Toowoomba. The marked difference which now exists between his present earnings and his previous earnings with the defendant are attributed to a suggested lack of work where Mr Kirchner now lives and the reluctance on his part to take all of the work which is available.
[18] I go then to the evidence of those who have worked with Mr Kirchner both before and after the accident. Mr Harris is a former employee of the defendant. He worked for it for nearly 20 years until the beginning of 2009. He was Mr Kirchner’s immediate superior. He described him as being, before the accident, motivated and willing to learn and as taking to new tasks quite quickly. Mr Kirchner was considered suitable for an adult apprenticeship with the defendant. After the accident he observed Mr Kirchner to be apparently affected by headaches so that he could not always work a full day. He was unable to work independently, that is without constant supervision. He described that on occasions, when he was talking to Mr Kirchner, he could see that the colour would simply drain from his face and that he was not “very well at all”. He described the problems Mr Kirchner had in working in the sunlight. But he could not recall Mr Kirchner making any complaints of any inability to do work once he was assigned to the workshop.
[19] The defendant called Mr Dwyer, a sales director which it employs now in New South Wales but who worked with Mr Kirchner in the Brisbane office where he was then the state manager. In his evidence in chief, he said that from all of the reports which he had about Mr Kirchner (before the accident) he was a “hard worker”. Mr Dwyer described him as very pleasant and popular with his peers but as someone who needed direction from other staff. He said that self-management was not Mr Kirchner’s “forte”. He recalls discussing with Mr Kirchner the possibility of an apprenticeship with the defendant and Mr Kirchner saying that he wanted to pursue some sales role, but Mr Dwyer told him that he did not think he was suited to that work. This was because he believed that Mr Kirchner was not suited to any work which required a person to be proactive and to work unsupervised. After the accident, Mr Dwyer said that there did not appear to be any complaints about the quality of his work. He recalled that Mr Kirchner left telling him that he wished to pursue a sales career and that he had an opportunity with a car yard in Toowoomba. He said that there is no reason why Mr Kirchner could not have stayed with the defendant had he wished. In cross-examination it was suggested to Mr Dwyer that he had had but limited opportunities to observe Mr Kirchner’s work performance. But Mr Dwyer said that he was in the workshop nearly every day and was able to make his own assessment. I accept his evidence.
[20] The defendant called Mr Plaxton who was formerly employed by the defendant, and at relevant times as a service manager. Prior to the accident, he recalled that Mr Kirchner was enthusiastic and “a very good worker”. Mr Harris worked under Mr Plaxton. But Mr Plaxton had ample opportunity to assess Mr Kirchner’s work. After the accident, Mr Plaxton recalled that Mr Kirchner was getting headaches from working in the sun and that he had been advised not to work around an open pit. After working for a while in the storeroom he came back to the workshop where his work was good and drew no complaints. His recollection was that Mr Kirchner left the defendant because he “wanted to move to Toowoomba where his fiancée was living”.
[21] Ms Eathorne has worked for the defendant for 11 years. When Mr Kirchner started with the defendant, she was the service and regional coordinator working in the Brisbane office and saw him at work every day. She described him as a worker who, when supervised, was “absolutely brilliant”, but who was not as good when unsupervised. He lacked initiative, she said. When he returned after the accident and worked in the storeroom, he did not perform well, which she attributed to his difficulty in working when unsupervised rather than to the effect of his injuries. Within the workshop, where he was supervised, he seemed to be working well, although she did not see him as often. In cross-examination she conceded that she had limited opportunities to assess his work prior to the accident because for most of that time he was out in the field. Still her evidence of the post-accident period has weight.
[22] Mr Wicks was the manager of the car dealership where Mr Kirchner worked in 2008. He said that Mr Kirchner began well but as time went on, his work “obviously deteriorated slightly”. He complained of headaches and migraines and of short term memory loss. Mr Wicks noticed this lapse in memory often. For example, he would ask Mr Kirchner to call a customer and within half an hour, Mr Kirchner would not have made the call and would have forgotten about it. He said that he sometimes saw Mr Kirchner sitting at his desk with a “glazed look … from having a headache”. But he said that his “sales ability was good” and that he sold the required quota of cars. He described the circumstances of Mr Kirchner’s leaving the business:
“Towards the end, it was just a matter of coming to agreement to part company … it’s a job that has a lot of pressure and, in the end, we both decided that he probably couldn’t continue to have that kind of … pressure every day … customer workload and so forth.”
[23] Mr Hicks was a sales representative with Wurth when Mr Kirchner went to work there. He spent much of his time working with and training Mr Kirchner. He said when Mr Kirchner was not tired he performed well, but he was a different person when tired: he became introverted and did not concentrate. He often had headaches and had to stop work early on some afternoons. But he described him as a good salesman who related well to customers.
[24] When Mr Kirchner left Wurth he did some casual work for a car detailer, who is Mr Rollinson. He is a long time friend of Mr Kirchner who conducted that car detailing business part time, but who was also employed as a warehouse manager by Super A-Mart. He said that Mr Kirchner’s work as a car detailer was good but “very slow” and “a little bit forgetful”. He noticed that Mr Kirchner was affected by headaches. He said he would not have employed him had he not been a friend. In his work at Super A-Mart, he was able to provide Mr Kirchner with some short term casual work when a new warehouse opened in Adelaide in 2009. Mr Kirchner was not effective in that work: he could not work on the higher racks and was often stopping for breaks.
[25] There was evidence from Mr Kirchner’s partner, Ms Kane and her parents. Ms Kane had met Mr Kirchner only a few times prior to his accident. Their relationship commenced a few months before he left the defendant’s employ. She then lived in Toowoomba. They began to live together when he moved there at the beginning of 2008. She described his mood swings and his headaches which prevent him from doing certain jobs or makes him take longer to do them. She described his symptoms of fatigue and in particular stuttering when he gets tired and run down. She said he takes pills for the headaches at least two or three times a week. She has done work with Mr Kirchner on her parents’ properties, such as mustering on horses or bikes or repairing trucks. She has seen him become fatigued and get headaches and dizzy spells, particularly when working in the sun.
[26] Mr and Mrs Kane have altogether five properties on which they farm and run cattle, sheep and pigs. Most of the time they have two full time staff and some casual workers. From time to time Mr Kirchner does work for them, but not always on a fully paid basis. They have many opportunities to observe him at work and socially. He has done several jobs around their properties, including some inside work assisting a cabinetmaker. Mrs Kane said that he gets tired and cannot do a long full day’s work as others do on the farm and he needs a break after a few days. She has seen Mr Kirchner on a number of occasions take medication when he obviously had a headache. She rejected the suggestion that he was lazy. Mr Kane spoke well of Mr Kirchner’s work but said that he could not work for long hours and that he gets giddy doing jobs underneath trucks and equipment. He said that Mr Kirchner finds it difficult to work after nine or ten hours and that he needs a break after three or four days of extensive work. He often gets headaches and has to be relieved from work such as driving a header. He is also forgetful.
[27] I go then to the professional opinion evidence. In Mr Kirchner’s case, reports of psychologists, an occupational therapist and an orthopaedic surgeon were tendered without the author being required for cross-examination. One of them was Dr Douglas, psychologist, who saw Mr Kirchner in July 2008 and who administered a number of tests. She wrote that her testing revealed:
“the presence of significant and abnormal cognitive declines in the following areas – delayed memory, attention/concentration, and speed of information processing abilities. The psychosocial testing has revealed the reported presence of significant health and physical concerns, along with increased depressive symptoms and elevated levels of irritability, moodiness and uncertainty about the future”.
In her opinion, these difficulties, both in cognitive and psychosocial functioning are most likely attributable to the injuries from the accident.
[28] Another psychologist, Mr Stoker, was of the opinion that Mr Kirchner was having difficulties maintaining employment because of a combination of poor cognitive functioning, depression, anxiety, headaches and anger and that he had suffered a permanent partial psychological impairment of the order of 19%.
[29] Mrs Coles, occupational therapist, agreed with Mr Stoker in that respect. And she wrote:
“Whilst it is to Mr Kirchner’s credit that he has endeavoured to find work compatible with his residual deficits, the practical reality is that he has been rendered less competent in the workplace as a result of the constellation of physical, cognitive and functional deficits. Even though he has endeavoured to return incrementally to a more efficient level of functioning, he had a reduced capacity to sustain ongoing application to the type of work for which he considered himself reasonably suited by background experience, interest, aptitude and injury-related limitations. Although Mr Kirchner has demonstrated himself to be not totally unemployable, his prospects of obtaining and thereafter maintaining himself in the workplace are limited.”
[30] The report of the orthopaedic surgeon, Dr Gillett, was to the effect that there was no significant orthopaedic injury from the accident and no treatment was required. From an orthopaedic perspective, he did not believe the accident affected his ability to work.
[31] Dr Sowby was called in the defendant’s case. He wrote that associated with Mr Kirchner’s residual neurological impairment, he had also developed an adjustment disorder with depressed mood, which had been only partially treated and for which there was some prospect of improvement. Notwithstanding that prospect, Dr Sowby’s opinion was that there would be “an ongoing partial incapacity for work, related to both his neurological impairments and psychiatric condition”. He continued:
“Since experiencing his head injury he has demonstrated a capacity for full-time work on a number of occasions, predominantly involving lighter sales type positions, though these jobs have required distinct sales targets to be achieved. However, he was reportedly unable to sustain these jobs due to his persisting neurological and adjustment type symptoms, consistent with the severity of head injury.
If a suitable part-time sales position in the areas that he has previously experienced were available … he would … be fit to undertake this type of employment on a part-time basis, approximately three days per week.
He would … also likely cope with full-time work in a light sales position, involving lesser psychological demands regarding sales targets, such as in a car spare parts retail environment.”
[32] The defendant called Dr Cameron, neurologist, who saw Mr Kirchner on 14 December 2007. He then wrote that his headaches related to his head injury but that they should settle if he used a certain medication, which Mr Kirchner seemed unwilling to use. He also referred to his “mild short term memory impairment” which was related to his head injury and the complete loss of a sense of smell. Dr Cameron wrote a further report in July this year although he had not re-examined Mr Kirchner. Having regard to his work history and other documents provided to him, he expressed the opinion that Mr Kirchner was capable of working full time in light manual activity. He said that it would be advisable that he worked indoors, perhaps in a maintenance factory. His work with the defendant in 2007 appears to have been of that kind. He did not believe that his working life expectancy had been shortened. In cross-examination, he said that he had no doubt that Mr Kirchner had suffered a significant head injury from which he has a residual neurological impairment and he accepted much of Dr Douglas’s opinion. But he added that little was known of his condition prior to the accident so that it was difficult to know how much of his difficulties in certain occupations were due to this injury.
[33] The defendant also called Dr Chalk, psychiatrist. His report was tendered but he was not cross-examined. He expressed the view that Mr Kirchner “has a cognitive disorder and acquired dementia as a result of the accident in 2006 and upon this has been superimposed the development of a chronic adjustment disorder with depressed mood”.
[34] In all of this there is no substantial issue as to these things: Mr Kirchner suffered a significant head injury which has left him with some residual cognitive impairment and an adjustment disorder. He is prone to headaches, dizziness and short term memory loss. He cannot work at heights or for extensive periods in the sun. He has lost completely his sense of smell. When he is tired his work performance deteriorates markedly. All of these things make him less employable and affect his quality of life. But he is not unemployable and, as he has demonstrated, is able to perform some work for at least some time.
[35] The substantial issue became whether the effects of his injury made him unable to continue his duties with the defendant and in turn in each of the positions of full time employment which he had in Toowoomba. I am not persuaded that he was unable to continue working for the defendant. He worked full time for at least a year before he left at the end of 2007. Of course he was unable to perform some duties there. But from all accounts he worked quite well in the workshop, doing tasks such as repairing small pumps, cleaning tools and other work which did not involve heavy lifting or work at heights. He had few days off. And he told at least one other who worked for the defendant that he was leaving because he wanted to try sales work. More probably than not, that is part of the explanation for his leaving the defendant, the other being his relationship with Ms Kane, who then lived in Toowoomba.
[36] He was not entirely successful in either of his sales positions. I accept that he found the work difficult on many days, particularly when working for Wurth where he had to drive long distances. However, he was not entirely unsuccessful in those jobs. And it is not the effects of his injury which were the reasons why he left in each case. It is just as likely that, as some with whom he had worked at the defendant said, he was unsuited to some aspects of sales work where he had to work unsupervised.
[37] Undoubtedly he is unsuited to regular and continuous farm work, where he would often have to work very extensive hours and in the sun. His low earnings since he has moved to western New South Wales are attributable to that matter and also to the lack of employment which is suitable for him in that location.
[38] In summary, he should be compensated for an impairment of earning capacity. But his case that his loss should be measured by the difference between what he would have been earning if still employed by the defendant and what he has earned cannot be accepted. Nor can the submission on his behalf that his residual earning capacity is no more than $300 per week be accepted. In my conclusion, his earning capacity is fairly illustrated by what he was doing and earning throughout the 2007 calendar year, but with some allowance in his favour for the likelihood that as he gets older, his disadvantage in the employment market will be relatively greater. And the assessment of the future loss from his impaired earning capacity should make some allowance for what would have been his prospects of promotion and higher earnings than he was enjoying with the defendant at the time of the accident. Further, his award should recognise that the position he occupied in 2007, or an equivalent position elsewhere, will not always be available to him.
[39] He was off work for 58 days during 2006. As already noted, his earnings were lower after he returned to work, not because of his injuries but mainly because he was by then a PAYG employee. That change would have occurred in any event. He should be compensated upon the basis that it would have occurred about half way through this period. Referring to the figures set out above at [13], this represents a gross income of about $1,112 per week which over 58 days is an amount of $9,217. Allowing for income tax at 30% and the Medicare levy of 1.5%, his net loss was therefore about $6,315. There is no demonstrated loss at least until the end of the 2007 calendar year apart from that component.
[40] His work as a car salesman was less remunerative. But he did not move to this work because of his injuries. The same applies to his employment at Wurth. Accordingly, he has failed to prove any loss from his diminished earning capacity, at least until he left Wurth. Since then, I accept that his diminished earning capacity has resulted in some loss of income, but not to the extent which is claimed, which is the difference between what he has earned and a notional income based upon his earnings at the defendant increased by 4% per annum year by year. Had he not been injured, he could have been earning much more on the Kane properties and in the region where he now lives. However, the reduction in his earnings during the 2010 year is largely attributable to his move to this relatively remote area for reasons not attributable to his injury. He ought not to be compensated as if the employment opportunities there were a representative of what was available in more populated areas. And his case did not seek to establish what income he would be earning and would continue to earn in that region but for the accident. Instead, his case was that he was unable to earn anything approaching what he had made with the defendant, a premise which is not proved.
[41] In these circumstances, where there is some proven impact from his impaired capacity but with little evidence as to his loss, the assessment is necessarily imprecise. I will allow a loss of $200 net per week from 1 July 2009 until this judgment, being an amount which I will round to $14,000. His award for past economic loss will therefore be $20,315. And calculating interest upon that sum, an allowance should be made for his receipt of Workers’ Compensation payments totalling $9,254.50. Interest on $11,060 at 5% will be allowed, which I will round to $750.
[42] Some allowance for loss of an employer’s contributions to superannuation should be allowed. Applying the “tariff” of 9% of the award for past economic loss, as is suggested in the plaintiff’s argument, that results in a further $1,828. I will allow interest on that at 5% for four years which is a further $365.
[43] As to the future loss from his impaired earning capacity, the starting point could again be that loss of about $200 net per week. However, as already noted, there are two factors which must be recognised in this assessment. One is the likelihood that he would have received some promotion and increased earnings. Secondly, there is the likelihood that his comparative disadvantage in the employment market will increase as he gets older. His assessment should be upon the premise of a loss at $300 net per week. Discounted at 5% per annum over the remaining 36½ years until he turns 67,[1] this results in $266,700. Allowing a discount for contingencies of 10%, his award under this heading should be rounded to $240,000.
[44] Upon the assumption that he would be a PAYG employee, he would have a further loss of employer’s contributions to superannuation. An amount of 9% on the component of $240,000 will be allowed, resulting in a further $21,600.
[45] He is entitled to a substantial award of general damages. His loss of sense of smell is of itself a significant and permanent consequence of his injuries. He is likely to continue to suffer, at least to some extent regardless of any medication, headaches and dizzy spells. He will be allowed $70,000. Interest will be allowed on one-third of that sum at 2% per annum which is a further $1,944.
[46] It is argued on his behalf that he should be awarded $9,079 for future expenses, consisting of $5,150 for psychological counselling (as recommended by Mr Stoker), $2,929 for analgesics[2] and $1,000 as a global assessment for travelling expenses. I am persuaded to allow each of those sums.
[47] He claims $6,185.44 for special damages and out of pocket expenses. Remarkably, the question of his travelling expenses, ultimately claimed in the sum of $600, seem to be controversial as were some of his pharmaceutical expenses. But there was no substantial impact made on his case in these respects. He will be allowed $6,185.44 together with interest on his “gap” medical expenses, pharmaceutical expenses and non-WorkCover travelling expenses at 5% for four years, resulting in a further $423.
[48] Accordingly, his damages are assessed as follows:
General damages $70,000.00
Interest $1,944.00
Past economic loss, no less than $20,315.00
Interest $750.00
Past loss of employers’ contributions to superannuation $1,828.00
Interest $365.00
Future impairment of earning capacity $240,000.00
Future loss of employers’ contributions to superannuation $21,600.00
Future expenses $9,079.00
Special damages and out of pocket expenses $6,185.44
Interest $423.00
Fox v Wood $3,528.00
$376,017.44
Less WorkCover refund $60,736.16
$315,281.28