Nucifora v AAI Limited[2013] QSC 338

SUPREME COURT OF QUEENSLAND

1. MCMEEKIN J: The plaintiffs, Mr and Mrs Nucifora, suffered personal injury in a motor vehicle accident which occurred on 6 July 2011. They claimed damages. Liability was admitted. The second plaintiff’s claim was settled. The first plaintiff’s claim was not. I am required to assess damages.
2. Mr Nucifora was born on 1 November 1972 and so is presently aged 41 years and was 39 years of age when injured.
3. In the subject accident Mr Nucifora suffered the following injuries:

1. compression fracture of the thoracic spine of T10;
2. fractured sternum;
3. fractured ribs eight and nine;
4. soft tissue damage to the right-hand;
5. soft tissue damage to the cervical spine;
6. soft tissue injury to the coccyx;

4. It is agreed that as a result of the injuries Mr Nucifora has an adjustment disorder with anxiety.
5. The parties have reached agreement on a number of matters:

1. the  assessment  of  damages  is  governed  by the  provisions  of the Civil Liability Act 2003 and regulations made pursuant to that Act;
2. the appropriate ISV is 15 and the appropriate measure of general damages is $21,850;^[1]
3. the percentage of any assessment of future economic loss to be ascribed to loss of superannuation entitlements is 11.33%;
4. the appropriate interest-rate to apply to any claim for special damages is 1.91%;
5. the appropriate rate to apply to any claim for future care is $30 per hour.

6. The plaintiff concedes he cannot make a claim for past economic loss. He did lose 15 days away from employment after the subject accident but was compensated by taking sick leave owing to him and can not demonstrate any loss.^[2]
7. The remaining heads of loss that need to be assessed are future economic loss, future assistance and future medical expenses.

Background

8. At the time of the subject accident the plaintiff had risen to the rank of general manager with BMA, a subsidiary of BHP Billiton, at the Gregory Crinum mine. The plaintiff was appointed general manager of the Saraji mine several weeks before the trial. He was and is employed on 12 month contracts ending on June 30th each year. I assume that his  employer has  the  right  to  not  renew his  contract  at  the  end of  the current 12 month period. The continuation of his employment depends then on his continued performance and no doubt on the overall performance of the company and its needs and profitability.
9. The plaintiff had originally trained as a fitter, turner and machinist in the sugar industry. He had commenced working in the mining industry in July 1997 when he took a maintainer operator position at the BHP Cannington silver, lead and zinc mine. During his time at the Cannington mine, Mr Nucifora commenced tertiary studies through Central Queensland University. He completed a Diploma of Maintenance Management in 2004 and continued his studies for a further two years, graduating with a Masters of Engineering (Maintenance).
10. Since July 1997 Mr Nucifora has maintained employment with BHP Billiton save for three years away, first in August 1998 for 12 months with Energy Resources of Australia at the Ranger uranium mine in the Northern Territory and again in October 2003 with Western Mining for just under two years at the Olympic Dam mine. That mine was purchased by BHP Billiton in August 2005 and so the plaintiff then came back into employment with BHP Billiton.
11. Over the years from 1997 the plaintiff has steadily risen through the management  ranks. He has in turn been an operator, maintenance planner-shutdown coordinator, senior mechanical maintenance coordinator, maintenance superintendent, and process plant maintenance manager before eventually being appointed in July 2009 as general manager. This position at the Gregory Crinum mine was his first position, of any sort, at a coalmine.
12. Mr Nucifora left the Gregory Crinum mine in January 2013.  He spent the following   nine months in a project role with BHP Billiton, assessing the performance of other mines owned by BHP Billiton. He travelled internationally to South Africa and Singapore, as well as domestically to the Illawara region, Hunter Valley, Sydney and Melbourne in this capacity.
13. The plaintiff took the position of General Manager of the Saraji mine in October of this year and maintained that position at the time of trial. He is in charge of installing the mine’s operating system, a similar role to that which he performed at the Gregory Crinum mine. Despite some evident modesty in the giving of his evidence it is plain that the plaintiff’s present position at Saraji mine is a very responsible position. The assets under the plaintiff's control are valued in the billions of dollars.
14. The plaintiff is subject to an annual performance review. The written records of two of those reviews, principally relating to his performance at Gregory Crinum mine, are in evidence. His reviews have been uniformly good. In the year following the subject accident, in a number of criteria, it was recorded that the plaintiff had exceeded performance expectations. Under the heading “behaviours” the plaintiff's ratings are very high, reflecting, it seems to me, his expertise and skill in his management role. Indeed his reviewer, in one respect, “accountability”, considered the plaintiff to be a “role model” for the entire organisation. The manager continued: “Taking accountability and ensuring everyone else is held accountable. Making and taking the tough decisions is a major strength.”
15. While there were three ratings of “performance improvement required” this needs to be judged against a background of the plaintiff being confronted with a lengthy strike and the collapse of a long wall, neither of which were his doing. Indeed it seems evident that the plaintiff dealt with these challenges very effectively. His reviewer noted: “Difficult year in terms of tonnes delivery however strong year in terms of establishing a strong basis for the future. All issues have been dealt with directly. This hard work will pay dividends in FY13.”
16. His review in the following year (2012-2013), in every category, was “fully achieves expectations”. That assessment was by Mr Stephen Dumble, the asset president for BMA and so a high ranking employee of BHP Billiton.
17. In summary the plaintiff has worked in mines of varying types including metalliferous, uranium and coal, has gained employment with three different employers, has not worked “on the tools” for about 13 years, has worked for BHP Billiton for 13 of the last 16 years and with that organisation has enjoyed steady promotion to positions of substantial managerial responsibility with excellent and very positive reviews. All this suggests that he is considered a valuable employee and would be to any mining company.
18. Mr Nucifora’s attractive skill set and performance is reflected in his remuneration.   While there are some imponderables given the structure of his salary package his gross income is in excess of $750,000 per annum. His income has risen substantially since the subject accident.
19. Mr Nucifora stressed that an important aspect of his decision making regarding his   future employment involves the schooling for his now 14 year old son who was born with spina bifida and has found a niche at a high school in Brisbane where Mr Nucifora would very much like to leave him. This wish to leave the family based in Brisbane may affect the range of employment opportunities that Mr Nucifora is prepared to pursue in the future, at least in these high school years.

Pain & Suffering

20. While the damages under this head are agreed it will assist in understanding the arguments about economic loss to explain Mr Nucifora’s principal complaints.
21. There was no attack on Mr Nucifora’s credit. He was plainly stoical and honest. His complaints were in accord with the various medical opinions expressed in the reports and the testing performed by an occupational therapist, Mr Hoey.
22. Mr Nucifora reports that pain originates from his back, consistently with the fracture to T10, and radiates through his shoulders and up into the neck. To relieve the pain, he needs to constantly change position, or stand for a period of time. This is said to occur consistently and tends to worsen depending on the activity he is conducting.
23. These symptoms impact on Mr Nucifora’s capacity to fulfil his work obligations. He    has considerable discomfort if seated for long hours, such as through managers’ meetings and office work. He has increased problems when required to drive or walk over rough terrain, a constant feature of his work. He was able to adjust his hours at Gregory Crinum mine. He cannot do that now at Saraji mine.
24. Mr Nucifora also emphasised his discomfort and anxiety during travel. As a result of    the psychological condition mentioned, Mr Nucifora finds that he suffers anxiety principally in two situations - when confronted with oncoming traffic particularly on open roads and when flying. He is required to spend numerous hours travelling. Long hours of sitting during flights exacerbate his discomfort. As a result, Mr Nucifora tires easily during travel. This too affects his overall work performance.
25. Mr Nucifora takes over the counter analgesics, attends regular physiotherapy and occasional acupuncture sessions which he finds helpful, and maintains a home exercise program.^[3] Over the past two years, BHP Billiton has been very accommodating of the plaintiff’s physical and mental symptoms.^[4]
26. I turn then to the principal question argued.

Future Economic Loss

Principles

27. It is agreed that the assessment can only be on a global basis as there is no “defined weekly loss”.
28. Section 55 of the Civil Liability Act 2003 (CLA) is therefore applicable. It states:

1. This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
2. The court may only award damages if it is satisfied that the person 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 relevant matters.
3. if the Court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

29. It may be doubted that the provision has affected any change to the position at common law. The effect of the section has been considered in Ballesteros v Chidlow^[5], Reardon- Smith v Allianz Australia Insurance Ltd^[6] and Allianz Australia Insurance Ltd v McCarthy.^[7] The usual principles continue to apply.
30. At least since Graham v Baker^[8] it has been well established that a plaintiff must demonstrate that his or her earning capacity has been diminished by the accident- caused injury and that that diminution “is or may be productive of financial loss”. Those requirements plainly continue: McCarthy.^[9] In determining the “may be” issue relevant in this case the principles explained in Malec v JC Hutton Pty Ltd^[10] apply.^[11] There is the “double exercise in the art of prophesying” involved – what the future would have been if the injury had not occurred and what it is now likely to be.^[12] As usual the fact finder must state the factual findings underpinning the award and display the reasoning behind the award sufficiently at least for the parties, and the Court of Appeal if called on, to comprehend the result, although the methodology need not include an explicit statement of a formula: Reardon-Smith^[13]. An “experienced guess” has been held to be a sufficient response to the facts presented: Ballesteros.^[14]

Submissions

31. Against the background I have explained, what must be evaluated here is whether Mr Nucifora’s back, neck and shoulder pains, and his anxiety, have caused a diminution in his earning capacity and whether that diminution may be productive of financial loss.  In accordance with the guidance in Malec, I must form an estimate of the possibility of loss occurring, ignoring those possibilities that have a less than 1% chance of coming to be.
32. The plaintiff contended for an award of $722,860^[15] and the defendant nil, or if that submission was not accepted, at most $50,000 as a global sum.
33. Counsel for the plaintiff submits:

1. Mr Nucifora is only 41 years old and so has a long working life ahead of him, probably in excess of 25 years. Over so long a period there is a very real risk that Mr Nucifora will not be able to continue to cope with his symptoms and that in time he will be “worn down” and so not be able to see out his working life, at least not at his present high level of responsibility;
2. He has a young family to consider, having a wife and four sons, one of whom requires special care. The need to locate the family in a major centre and preferably Brisbane may restrict the positions the plaintiff can pursue;
3. Mr Nucifora is not an attractive proposition to an employer. A history of established injury with ongoing symptoms requiring regular medication would alarm any employer and put Mr Nucifora at a disadvantage in competing with able bodied peers.^[16] There could be no question of    him not disclosing his injuries to any prospective employers;
4. The current job market for general mine managers is very tight, with employers, including his present employer, monitoring employees carefully;^[17]
5. The current contract with BHP Billiton ends in June 2014. His employment past this point is uncertain.

34. These various matters justified a finding, it was contended, of a 15% reduction in Mr Nucifora’s earning capacity and so, after an adjustment for contingencies, the contended award.
35. The defendant submits, in support of its nil assessment, that Mr Nucifora:

1. has maintained employment since the accident, and has in fact significantly increased his income over the previous two years;
2. has been a long time employee of BHP Billiton. He has performed with distinction in difficult roles. That combined with his great experience in the mining field (having worked on numerous projects with varying resources and processes) suggests that it is highly unlikely that he would not be retained;
3. has maintained solid performance reviews throughout his work and is obviously a driven and ambitious man;
4. has been able to cope with his injuries through their acute phase and they have now stabilised;
5. is no longer “on the tools” – his role in the operational side of the company has decreased. He now spends a large majority of working time in the office. Hence his exposure to those aspects of his work likely to cause him problems is not great.

Discussion

36. The distinction between the submissions is that the plaintiff tended to look at the longer term possibilities and the defendant to stress the shorter term certainties. There is merit in both submissions.
37. I  agree  that  in  the  shorter  term  it  seems  highly  unlikely  that     Mr  Nucifora’s employment or income is at risk. He is obviously highly regarded by his present employer. He has had a long period of employment there. He has enjoyed rapid promotion. He has now been given substantial responsibility and so rewarded with a significantly increased income. This has occurred through the acute phase of his injury. He has demonstrated a capacity to adapt. Dr McPhee spoke of this:^[18] “Either you can accept it and get on with life and you live within any restrictions that the pain provides or, in fact, it becomes the centre of life and therefore you start to get a lot of psychological adaptation which tends to amplify everything for them.”^[19]
38. In my judgment Mr Nucifora falls into a category of person who is unlikely   – very unlikely - to be overwhelmed by his symptoms. That seemed to me to be self evident but if proof be needed, and as the defendant pointed out, Mr Nucifora has demonstrated a capacity to cope with physical problems in the past. He has experienced problems with his neck, lower back and knee^[20] yet persisted with manual work apparently with little time off and eventually advanced to management level.
39. Mr  Nucifora  is  stoical,  as  I  have  mentioned,  and  intelligent, determined  and ambitious. He has a demonstrated capacity to manage his present symptoms well. His position as general manager is demanding but so it was at Gregory Crinum mine and he found a way to cope.^[21] And the demanding hours, nominally capped at 12.5 per day,^[22]  are likely to be only temporary. They proved so previously.
40. If there is a problem then it is in the longer term that there is the possibility of any risk materialising.
41. Section 55(2) requires that    I have “regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters”. I take into account that Mr Nucifora is aged a relatively youthful 41 years, has an excellent work history indicative of a man very likely to have worked at least to age 65, a period of 24 years, has no actual loss of earnings to date but to the contrary, and a significant degree of impairment – approaching a 10% impairment of the whole person. “Other relevant matters” follow.
42. What seems to be common ground is that Mr Nucifora is as he always will be. Constant pain will be his companion. He will suffer aggravations depending on his activities. In my view there is a chance, significantly greater than the 1% level that can be ignored, for Mr Nucifora to find that the constant need to perform at a high level becomes more than he can reasonably and conscientiously bear. There are various possibilities. He may retire a little earlier. He may, in the distant future, cut back on his hours while maintaining his employment. These are imponderables not capable of calculation. But the risk is real enough.
43. What is also common ground is that Mr Nucifora has a very high   earning capacity. Mr Whitten performed calculations which suggested a net weekly pay in the order of $8,332 in 2013 and $8,523 for 2014.^[23] These calculations include bonuses and other benefits. Their continued receipt is more speculative than the base salary,^[24] but that base is not inconsiderable - in the order of $4,890 net per week.
44. I have considered some hypothetical situations.  Let us say Mr Nucifora decides because of constant pain to retire one year early. Let us assume that his pay at that time includes the present level of bonuses and benefits. Retirement at age 64  instead  of  age  65,  to  pluck  years  at  random,  would  result  in  a  loss  of   about $145,000.^[25]  Retirement at age 60 instead of age 65 would result in a loss of about $784,000.^[26] Assuming the base salary, and so no bonuses or benefits, but with an accelerated  retirement  of  five  years  as  before,  still  results  in  a  loss  of    about $450,000.^[27]
45. I acknowledge that the present very high income may not be in place in 20 years time because of a variety of circumstances. But against that Mr Nucifora is more likely than most to be promoted to higher levels of responsibility and income than he has already achieved.
46. And of course Mr Nucifora may not retire early or seek to reduce his hours   or take some other step in life that impacts adversely on his income because of the accident- caused injuries. It is virtually impossible to judge the risk that the eventuality will occur. But it is a commonplace that age wearies most of us. And Mr Nucifora has been made weaker by time and fate than he would have been had this accident not occurred. My assessment is that the chance of him taking some such step is in the order of about 50%.
47. Doing the best I can, and confessing to an “experienced guess”, I assess the loss at $250,000.

Loss of Superannuation

48. In accordance with agreement of the parties I assess the loss under this head at $28,325.

Future Paid Services

49. The plaintiff claims $29,547 based on a need for services at an average of 1.5 hours per week over 43 years with a discount of 30%.
50. The  defendant  submits  that  the  claim  should  be  rejected  on  the  basis  that  the plaintiff does not meet the threshold provided for in s 59(1)(c) of the Civil Liability Act. That section provides:

1. Damages for gratuitous services provided to an injured person are not to be awarded unless-

1. the services are necessary;
2. the need for the services arises solely out of the injury in relation to which damages are awarded; and
3. the services are provided, or are to be provided-

1. for at least 6 hours per week; and
2. for at least 6 months.

51. The plaintiff concedes that he cannot satisfy the threshold but submits that he does   not need to as his claim is not for gratuitous services but for paid services citing Carroll v Coomber & Anor^[28] and Kawecki v Tobin & Suncorp Metway Ltd.^[29]
52. Mr Crow QC did not submit that there was any error in the approach taken in those cases – the section seems plainly to so provide – but then argued that the decision in Clement v Backo^[30] necessitated that a deal more evidence than was lead would be required to justify an award. To determine that point it is first necessary to understand the factual basis for the claim.
53. The plaintiff’s submission refers me to Mr Hoey’s report.^[31] Mr Hoey opined in September 2012 that Mr Nucifora’s injuries “have caused difficulties or reduced efficiencies with chores around the home”, that he was given assistance by his wife and by “paid commercial services” to the extent of one to two hours per week and he, Mr Hoey, thought that appropriate. What chores and assistance Mr Hoey had in mind  is  not  entirely  clear  but  the  reference  seems  to  be  to  the  description  at paragraph 15 of his report where there is mention of employing a gardener, a  cleaner and an “ironing lady”.
54. Mr Nucifora’s evidence concentrated on only two aspects of domestic chores –fencing and concreting^[32] around the home, neither of which seems to have figured in Mr Hoey’s analysis of the one to two hours per week.
55. Clement v Backo involved very different considerations to those here. There Mr Clement had commenced a mahogany plantation prior to the subject accident. His wife provided unpaid and so gratuitous services after the accident to keep the plantation going and to expand it. It was a commercial venture. Had she not helped, Mr Clement would have sustained a substantial loss. Against this background the President concluded:

“Through Mr Backo's negligence Mr Clement lost the ability to work in his plantation for profit. The judge found that this produced a diminution of earning capacity productive of economic loss, namely the future commercial profit from the mature trees, but for Ms Clement's gratuitous services. Consistently with Medlin, Mr Clement's entitlement to damages for his diminution of earning capacity which may be productive of financial loss should not be reduced because the prospect of that financial loss was diminished through gratuitous services provided because of Mr Clement's need arising out of his accident-related injuries. The statements of the High Court in Medlin to which I have referred when applied to the facts here provide clear authority for supporting the extension of the principle in Griffiths v Kerkemeyer to Mr Clement's claim for Ms Clement's gratuitous services in the commercially operated plantation.”^[33]

56. The claim here has nothing to do with any commercial venture nor does it concern   any assistance to maintain Mr Nucifora’s earning capacity or an argument that his entitlement to damages for his diminution of earning capacity “should not be reduced because the prospect of that financial loss was diminished through gratuitous services provided”. Fencing and concreting in the domestic setting may or may not improve the value of the residence. But the claim was not advanced on the basis of any such impact. Properly understood a claim for services that must be paid for in the future has nothing to do with the Griffiths v Kerkemeyer principle. It falls into the third category of recoverable loss spoken of by Gleeson CJ, Gummow and Heydon JJ in CSR Ltd v Eddy:

“The third type of recoverable loss is actual financial loss, for example, ambulance charges; charges for medical, hospital and professional nursing services; travel and accommodation expenses incurred in obtaining those services; the costs of rehabilitation needs, special clothing and special equipment; the costs of modifying houses; the costs of funds management; and the costs of professionally supplied home maintenance services. It is not necessary for the costs actually to have been incurred by the time of the trial, but it is necessary that they will be incurred.”

That principle permits recovery by plaintiffs who, though at the time of the trial they have not made contracts for the provision of future care, will have to do so in future if they are to receive it.”^[34]

57. So I have no difficulty accepting that an amount is recoverable in damages to compensate an injured plaintiff for expenses that they will be obliged to incur in the future by reason of the accident-caused injuries. The only issue is how that loss should be assessed.
58. Given the demands on Mr Nucifora’s time and energy from his employment, and despite his wish to do whatever he could himself around the home,^[35] it might be doubted that Mr Nucifora, even uninjured, would be likely to have spent much of  his spare time in these activities. I have in mind his substantial income which would free him of the necessity to do the work himself and his understandable statement: “I'm working away from home. I do long hours. I go back.  I want to invest that time with my family while I'm at home.”^[36]
59. Further I observe that a need to fence and concrete – and perform similar demanding domestic tasks - is not liable to come up often in the course of life. It is not amenable to an analysis of an average of so many hours per week assistance being needed as is often done in these claims.
60. Sometimes the past is a guide, and it could never have been much of one here, but    no evidence was lead to indicate how often such work had been performed prior to the subject accident. Nor was any other evidence lead to enable the assessment of the probability of such work being needed in the future. All that seems to be clearly established is that Mr Nucifora is not reasonably able now to perform such tasks if and when they arise. Again all that can be allowed in these circumstances is a modest global sum. I will allow $7,500.

Future Medical Expenses

61. The plaintiff seeks $16,926 under this head of loss for future medication, physiotherapy, acupuncture and psychotherapy treatments. The defendant allows $10,000 as a global sum.
62. It is not in issue that the evidence supports an allowance of $1,824 for psychotherapy treatment.^[37]
63. The plaintiff’s approach is to allow the present cost of Nurofen at $8 per week and an amount for “flare ups” necessitating visits to a GP or physiotherapist from time to time. The defendant does not dispute that approach but submits that a more modest global component is sufficient.
64. I note Dr Gillett’s unchallenged view that the “self-management [the plaintiff] is doing at present is appropriate long term management”^[38]. The plaintiff details his “self-management” as comprising several physiotherapy and acupuncture treatments, continuing from the accident.^[39]
65. The special damages schedule tendered^[40] shows that in the 2013 year Mr Nucifora incurred expenses of $925 including travel costs or about $21.50 per week. That takes no account of medication costs. While I acknowledge that the expenses set out in the schedule have been incurred in a period where Mr Nucifora has been exposed to significant demands which may not reflect daily life in the years ahead, nonetheless past experience supports a substantial allowance, and in my judgment a more substantial allowance than the defendant’s submission permits and akin to the amount claimed.
66. In my view a global award of $16,500 is justified on the evidence.

Summary

67. In summary, I assess the damages as follows:

68. There will be judgment for the plaintiff in the sum of $329,161.78.
69. I will hear from counsel as to costs.