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Longbottom v L & R Collins Pty Ltd[2021] QSC 242

Longbottom v L & R Collins Pty Ltd[2021] QSC 242

SUPREME COURT OF QUEENSLAND

CITATION:

Longbottom v L & R Collins Pty Ltd [2021] QSC 242

PARTIES:

JAIME KEVIN LONGBOTTOM

(plaintiff)

v

L & R COLLINS PTY LTD ACN 009 953 093 AS TRUSTEE FOR L & R COLLINS UNIT TRUST ABN 50 865 836 973

(defendant)

FILE NO:

17 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

28 September 2021

DELIVERED AT:

Brisbane

HEARING DATES:

14, 15, 16 June 2021

JUDGE:

Holmes CJ

ORDER:

Judgment for the plaintiff against the defendant in the amount of $482,696.99

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – AT COMMON LAW – FAILURE TO TAKE PRECAUTIONS, WARN, INFORM ETC – where the plaintiff was employed by the defendant as a banana harvester on the defendant’s farm – where the plaintiff was standing beneath a banana tree for the purpose of catching a bunch of bananas when a fellow employee made a large incision in the tree, causing it to collapse on the plaintiff – where the plaintiff suffered multiple injuries attributable to the incident – whether the defendant is liable in negligence – whether the plaintiff was contributorily negligent

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff has not worked since the date of the injury – where the plaintiff has a pre-existing degenerative lower back condition – where the plaintiff has in the past had long periods of unemployment – where the plaintiff cannot undertake heavy physical work, which was his primary source of income in the past, due to the injury – where the plaintiff has some residual earning capacity but would likely find it difficult to re-train given his educational limitations – what measure of damages for past and future economic loss is appropriate in the circumstances

COUNSEL:

J E Murdoch QC, with T O'Brien, for the plaintiff

C J Ryall for the defendant

SOLICITORS:

Turner Freeman for the plaintiff

Hall & Wilcox for the defendant

  1. [1]
    The plaintiff, Mr Longbottom, seeks damages for personal injuries he sustained on 20 June 2016 while harvesting bananas in the defendant’s employment at its farm near Cooktown.  On the day in question, Mr Longbottom had been working as a “humper”, the person required to catch the banana bunch, when the other employee with whom he was working (the “cutter”) made a large incision in a banana tree, which, instead of allowing the bunch to bend gradually in his direction, caused the top of the tree, with the bunch, to collapse onto Mr Longbottom. Liability and quantum were both in issue. 

The pleading as to liability

  1. [2]
    Mr Longbottom alleged that the defendant had been negligent because, among other things, it had failed to train the cutter or him in a safe method of harvesting larger than usual bunches of bananas from taller than usual trees.  The defendant pleaded, however, that Mr Longbottom had been trained in a harvesting method which required the humper to stand clear of the bunch to be harvested and watch the cutter while the latter made a cut in the banana tree close to the bunch. Then the humper would move to a position where he could grasp the bunch and pull it to a position on his shoulder.  At that point, he would give a verbal signal which would tell the cutter that he could now make a cut to separate the bunch from the tree.
  2. [3]
    The defence went on to deal with the situation where the tree was too tall for the humper to reach the bunch before a cut was made in the tree.  In that circumstance, the same procedure was adopted, except that the cutter would cut the bunch from the tree once the bunch was on the humper’s shoulder and the top of the bunch was low enough for him to make the cut. Mr Longbottom had been guilty of contributory negligence, either in grasping and pulling the bunch immediately an incision was made in the tree, so that the bunch fell before he could manoeuvre it onto his shoulder and he took its weight and that of the part of the tree from which it was hanging; or in failing to stand clear of the bunch and tree while the incision was made.
  3. [4]
    In his reply, Mr Longbottom admitted that the harvesting method the defendant described was adopted for harvesting average-sized trees, and that he was trained in that method.  It was suitable for average-sized trees, but not for larger trees.  He denied pulling the bunch, which he said he could not reach, and maintained that it was the cutter’s action in making a large, rather than a small, incision which caused the tree and the bunch to collapse on him.

The evidence in relation to liability

  1. [5]
    Mr Longbottom said that at the time of his injury he had worked for about three months for the defendant.  He was initially put to work as a humper, catching bananas from small trees.  Despite the admission in his pleadings that, at least for average-sized trees, he was instructed to stand clear of the bunch while the cutter made the first cut, Mr Longbottom said that he was taught to stand under the tree with the cutter, who would first cut the string which was tied to the trees to secure them in the event of a storm.  Next, the cutter would make a small incision to allow the bunch to be lowered slowly and come to rest on his, Mr Longbottom’s, shoulder. When he gave the word, the cutter would cut the tree down.  The imperative was to catch the bunch and ensure it did not hit the ground, bruising the bananas.  They would move rapidly from tree to tree. After a month or so, he was invited to work as a cutter. He described the work: using a cane knife, he would make a small incision into the trunk of the tree on the side on which the bananas were hanging, so that it would bend in that direction.  If the first cut did not cause the tree to begin its descent, he would make another small cut.  It was important not to make a large cut because the tree stem was soft, and with the weight of the bananas, it was liable to snap.  
  2. [6]
    Some video footage of Mr Longbottom at work as a humper was tendered. It showed him holding the bottom of a large bunch of bananas as a cutter made a nick in the banana tree stem, and drawing the bunch onto his shoulder as the tree bent towards the ground.  Another video clip showed one of the principals of the defendant company acting as cutter and an unidentified humper standing with his outstretched hand under a large bunch as a nick was made in the tree trunk.  The humper then leaned forward and drew the bunch onto his shoulder as the tree bent.
  3. [7]
    On the day he was injured, Mr Longbottom said, some workers from another of the defendant’s farms had come to assist with harvesting because there was a large delivery to be made.  He was asked to catch a large, high bunch of bananas to be cut by one of the workers he did not know.  The tree was unusually tall and the bananas unusually high; although Mr Longbottom was six foot two inches in height, he could not reach the bottom of the bunch.  He lent his freshly sharpened cane knife to the cutter and told him to be sure to cut the tree “right”; he then positioned himself under the tree, ready to catch the bananas. He did not look at what the cutter was doing, instead looking up at the bunch in preparation for catching it. Rather than making a small incision, the cutter had made one large cut, causing the tree to snap and fall with the bunch. Mr Longbottom caught bunch and tree on his right shoulder and was knocked to the ground, falling on his right side. He lay there with the tree and bananas on his left side until he was helped up. Later that day he was driven to hospital in Cooktown and did not return to the farm work.
  4. [8]
    Under cross-examination, Mr Longbottom denied being taught that in circumstances where he could not reach a large heavy bunch, he should stand back while one or two smaller cuts were made to allow the tree to start to bend to a point where as humper he could control it.  And, he said, he was not taught to stand and watch the cutter until he saw the tree moving; rather, he watched the bananas so that he could catch them as required.  He acknowledged that there were some “close calls” when banana bunches and trees were cut down too quickly; he knew that there was a risk of being hit by a falling bunch of bananas with the tree attached.  He estimated the weight of the heavier bunches at 70 kilograms.
  5. [9]
    Mr Longbottom was questioned about a notice of claim for damages, which contained information he had declared to be correct under s 275 of the Workers Compensation and Rehabilitation Act 2003.  The document, dated on or around 29 August 2019, contained a description of the events which had caused him to be injured.  There was this difference from his account in pleadings and evidence: according to the notice of claim, he was designated to pull the string which would release the bunch from the tree and because the cutter had made a larger incision than was necessary, when he pulled on the string to release the bunch, the whole tree fell on him.  Mr Longbottom did not deny that it was his statement but maintained that the strings on the trees on the farm were broken and there was no string to be cut on the tree he was dealing with.
  6. [10]
    The defendant called in its case Mr Aiaraisa, who had been Mr Longbottom’s supervisor on the day in question but had only a vague recall of seeing Mr Longbottom while he was waiting to go to hospital, after he had been injured. He gave evidence of the cutting routine in which workers were instructed. If the banana bunch could be reached by the humper, he would hold onto the end of it while the cutter was making a small incision, so that when it aligned with his shoulder the bunch could safely be cut from the tree.  If the bananas were too high for that to occur, the cutter would make a small cut closer to the top of the tree, while making sure no one was underneath it. That was so that the tree would come down slowly and the humper would be able to reach the bunch and line it up with his shoulder before the cutter cut it from the tree.  While the first cut was being made, the humper had to stand away from the area where the tree and bunch were leaning until the bunch commenced the slow movement down.  If the bunch came down faster than normal so that the humper could not position himself, he should not move underneath it at all; for safety reasons he was to let it fall to the ground. 
  7. [11]
    In cross-examination, Mr Aiaraisa acknowledged that banana tree stems had a thin skin with soft fleshy watery matter within, and generally leaned to the side where the bunch was hanging, so that a strong swing with a sharp machete could make the tree fall; hence the necessity of small cuts.   He had no recollection of having given Mr Longbottom instructions or having corrected his technique. 

The submissions in relation to liability

  1. [12]
    The defendant relied on Mr Longbottom’s admissions in his reply that the harvesting method for average sized trees entailed the humper standing clear while the first cut was made; that he was trained in that method;  and that it was suitable.  It was submitted that it should be concluded from Mr Aiaraisa’s evidence and the obviousness of the risk of standing under a heavy bunch of bananas out of the humper’s reach that the same method was adopted in relation to large trees.  Both Mr Longbottom and Mr Aiaraisa had said that instruction was given on work methods and there was some supervision of workers.  Mr Longbottom had never been reprimanded for failing to follow instructions, so it should be inferred that he had in fact followed the harvesting method prescribed by the defendant.  Common sense also indicated that it would be prudent to watch what was happening, although in relation to smaller trees, the space of time between cutting and catching might be very short.  Mr Longbottom had conceded that he knew that there was a risk of injury if the cut was not made properly.  He had failed to take reasonable care for his own safety in not following the usual procedure and standing back to watch while the first cut was made.  Contributory negligence of the order of 20% should be found against him.
  2. [13]
    Mr Longbottom’s response on the issue of contributory negligence was that his case was not impaired by the admission that he had been trained to stand clear of the bunch.   Even had he had stood clear of the bunch until it was level with his shoulder, he would still have been struck by the tree, because the cut had brought its whole top part down.  The two video clips, it was submitted, supported his account; in each the catcher was standing close enough when the first cut on the trunk of the tree was being made, to lean forward and take the bunch onto his shoulders.  It was rational for Mr Longbottom to be watching the bananas, not the cutter, because he needed to catch them on his shoulders. 

Conclusion on liability

  1. [14]
    I accept Mr Longbottom as an honest witness, although I doubt that his recollection of events is entirely reliable, having regard to the different description of events given in the notice of claim.  Nonetheless, I am satisfied that he was paired with a cutter who, through lack of training or lack of skill, made far too deep a cut in the banana tree, causing it to fall immediately and without warning, striking Mr Longbottom who was standing directly under it. The risk of his being injured in that way if care was not taken in cutting the tree was foreseeable and significant, and a reasonable employer would have guarded against it. That was negligence for which the defendant is liable. 
  2. [15]
    I also accept Mr Aiaraisa as an honest witness, who gave sensible and credible evidence about the harvesting method for large trees, which entailed standing clear and watching the cutter. But there was no evidence of specific instructions to that effect being given to Mr Longbottom in relation to larger trees. Nonetheless, there was, in my view, some contributory negligence on Mr Longbottom’s part in failing to keep clear while the first cut was made, particularly given the size of the tree and his unfamiliarity with the cutter.  I do not accept the submission that standing clear would have been made no difference because he would have been struck by part of the tree in any event.  If he had adopted the common sense approach described by Mr Aiaraisa, he would have stood clear of the area into which the tree was leaning. And even in the unlikely event that some part of the tree stem reached him, it would not have caused the damage done by the bunch itself. Banana tree stems, on the evidence, are not solid or substantial; that is why they are easily severed. Mr Longbottom, however, took the direct weight of the falling bunch.
  3. [16]
    This was, by Mr Longbottom’s account, a very tall tree bearing a large bunch of bananas; there was no question of his being able to hold or position the bunch before the first cut was made, and it must have been evident that it was dangerous to stand below it should it fall suddenly, rather than in stages. Yet Mr Longbottom had positioned himself under the bunch in readiness to catch it, and he was hit by it. It is admitted on the pleading that he had some training in relation to smaller trees which entailed watching the cutter and keeping clear, at least of the bunch, for the initial cut, and he acknowledged in evidence that he recognised some risk in the process. Ordinary prudence would indicate the danger of not standing back and keeping a lookout when the first cut was made to a larger tree. Mr Longbottom disregarded an obvious risk and failed to take reasonable care for his own safety.
  4. [17]
    Recognising, though, that the accident was primarily due to the negligence of the cutter, who made the cut with such force that both tree and bunch suddenly fell, I assess the contribution of Mr Longbottom’s negligence to the accident at 10%. 

Quantum issues

  1. [18]
    Mr Longbottom claimed that as a result of the accident he had sustained injuries to his right hip and right shoulder, as well as a psychiatric injury, in respect of which he claimed damages.  General damages were agreed at $31,810.00 and past special damages at $66,084.19. (There was no claim for interest on the latter.) The Fox v Wood component was $18,855.00.  Some elements of future special damages were in issue, but the principal area of contest was as to past and future economic loss.  Assessment of those damages requires consideration of Mr Longbottom’s likely earnings, had he not been injured, and of what earning capacity remains to him now.

Mr Longbottom’s pre-injury work history

  1. [19]
    Mr Longbottom was born in 1986; he was 30 when he was injured and is 35 now.  When not travelling, he has always lived in Sydney with his mother.  He completed grade 10 in 2001, but described himself as struggling with most subjects.  His school reports for the year do not suggest a high degree of application.  After attempting a further year of high school, he became an apprentice plumber, but did not complete the apprenticeship.  While he could manage the work involved, he said, he could not pass the necessary TAFE subjects.  After the end of the apprenticeship in 2004, he undertook labouring work, sometimes through labour hire companies, with different employers until about June 2008, when he travelled to Europe.  His nett income for the 2002/2003 financial year was, according to tax records, $15,385.64; for the 2004 year, $12,340.37; for the 2005 year, $12,233.30; for the 2006 year, $18,942.10; for the 2007 year, $33,385.00; and for the 2008 year, $27,578.10.
  2. [20]
    Mr Longbottom spent almost four months in Europe in 2008, travelling and surfing.  On his return to Sydney in October 2008, he said, he undertook cash-in-hand work, labouring and mowing lawns.  His pattern of activity was to work three days a week and surf two days a week.  He could not, in consequence, provide any employment or tax records for the following three years, other than figures for his nett income for the 2009 and 2010 years which were, respectively, $1,404.00 and $1,962.00.  That income was derived from some work, obtained through a cousin, with an indigenous youth agency, escorting children on holiday and after-school activities.  Asked why he did not stay in that role, he said that he

“…just fell out of it and…and wanted to just try something else”…

  1. [21]
    From late November 2011 to mid-September 2014, Mr Longbottom received a carer’s pension while he looked after his mother, who had injured her back. Over this period, he said, he was surfing up to six hours per day and occasionally mowing lawns for what he described as “pocket money”. Mr Longbottom’s mother gave evidence: she said that he would carry the shopping for her, mow the lawn, vacuum and paint walls.  Finally, she said, she pressed him to end the arrangement because she considered he needed to be re-employed and get on with his own life.
  2. [22]
    According to his tax records and his statutory declaration, in the 2014 financial year, Mr Longbottom earned additional income ($8309) working as a self-employed contractor for the business of a friend, Mr Reitano. The job, as a concrete pumping linesman, involved heavy lifting, putting hoses in place through which concrete was pumped into slabs.  In cross-examination, Mr Longbottom agreed that while working with Mr Reitano’s company, he had also liaised with clients and suppliers for concrete orders and supplies, completed site docket invoices and communicated with the company’s accounts department about invoicing.  In the following financial year, Mr Longbottom took another job which also entailed heavy work; it involved digging, usually by hand, the holes in which building foundations were constructed.  In mid-May 2015, Mr Longbottom obtained a job with the local council as a garbage truck runner, running behind the truck and bringing wheelie bins to it for emptying.  In the tax year ended 30 June 2015, his nett income from employment, according to his tax return and notice of assessment, was $19,244.09.
  3. [23]
    Mr Longbottom finished work with the council on 7 December 2015, and three days later travelled to a ski resort in Japan, where he spent a three-month season snowboarding and assisting a friend who was giving classes in the activity.  In March 2016, he flew from Japan to Cairns, having decided to look for work there.  On 12 March 2016, he began work with the defendant.  At that time, he said, his physical and mental state were excellent.  The work was heavy, but he had no difficulty with it.  Mr Longbottom’s nett income for the financial year ending 30 June 2016 (which included his work as a garbage truck runner as well as employment by the defendant) was, according to the notice of assessment, $22,426.58.

Mr Longbottom’s pre-injury medical history

  1. [24]
    The records of Mr Longbottom’s general practitioner for 2013 and 2014 are in evidence.  He seems in the main to have presented for unremarkable complaints, although the defendant placed some reliance on a note of 8 April 2013 that he was “highly anxious”, with some discussion of safe drinking levels.  However, in late 2014, he was training for an amateur boxing match (his first and last organised boxing match) and was noted to be using minimal alcohol, following a healthy diet and looking well.  In January 2015, he had “anxiety issues” and was prescribed an antidepressant. This seems to have coincided with a relationship breakdown, which culminated in his admission to hospital overnight in February 2015 with what is described in the medical records as “suicidal ideation in context of alcohol intoxication”.  After that admission, his general practitioner prescribed him a different antidepressant, but there is no indication that he remained on it for long. 

Mr Longbottom’s injuries and their consequences

  1. [25]
    Mr Longbottom said that after he was hit by the bananas and tree, he experienced pins and needles and pain on his right side.  The records of Cooktown hospital, where he was treated as an outpatient, show that he was complaining of some transient paraesthesia on the right side and a painful right hip.  The notes record that his lumbar spine was “non-tender”.  About a week later, it seems from the records, Mr Longbottom decided to return to his family in Sydney.  Using a crutch for support, he made the trip back to Sydney by air and returned to live in his mother’s house.  His evidence was that his shoulder was sore, and he slept on the lounge because the pain in his hip made it difficult to get up the stairs to his bedroom.  Mr Longbottom’s mother and sister, with whom he was living, both gave evidence confirming his apparent pain in shoulder and hip. 
  2. [26]
    The medical records show that Mr Longbottom attended his general practitioner on 6 July 2016, complaining of right hip pain.  He was sent for an ultrasound which showed a labral tear in the right hip and he was referred to an orthopaedic surgeon who saw him in September 2016 and recommended physiotherapy.  However, he noted that Mr Longbottom was complaining of pain in his right shoulder, for which another ultrasound was undertaken, and he was referred to a different orthopaedic surgeon specialising in the shoulder joint. In the interim, in November 2016, Mr Longbottom had a week-long trip to Bali, which was a gift from a friend.  He said that travel was uncomfortable, but he managed with anti-inflammatory medication and painkillers.
  3. [27]
    The orthopaedic surgeon to whom Mr Longbottom had been referred for treatment of his shoulder pain diagnosed a “slap” tear of the labrum of the shoulder and a dislocation of the acromioclavicular joint.  When physiotherapy, anti-inflammatory medication, and corticosteroid injections into the shoulder did not improve matters, the surgeon undertook, in April 2017, a repair of the slap tear, a rotator cuff repair and ligament reconstruction.  After eight weeks wearing a sling post-operatively, Mr Longbottom was referred to physiotherapy.  Unfortunately, he developed adhesive capsulitis of the right shoulder (“frozen shoulder”). The physiotherapy continued, with some improvement to Mr Longbottom’s range of movement and pain level, but a report from the physiotherapist in February 2018 records that Mr Longbottom still had significant stiffness in the shoulder and, although not requiring regular pain relief, was unable to sleep on his right side.
  4. [28]
    Mr Longbottom said that after the sling was removed, he became anxious about use of his right shoulder and about encounters with other people, in case his shoulder was bumped.  He was anxious and depressed because the shoulder operation had not resolved his problems and he had developed the frozen shoulder.  His mental state at the time led his general practitioner to refer him to a psychologist who saw him between March and July 2018.  The psychologist recorded Mr Longbottom’s concerns and noted that he had been experiencing panic attacks.  He described Mr Longbottom as using coping mechanisms – avoiding contact, including social contact, with others – and engaging in obsessive thinking about his shoulder injury.  He diagnosed him as having features of panic disorder with developing agoraphobia.  The psychologist undertook cognitive behavioural therapy with Mr Longbottom, and his general practitioner prescribed antidepressants. 
  5. [29]
    In the last quarter of 2018, Mr Longbottom was referred to a psychiatrist who noted that he was experiencing generalised anxiety and was still having panic attacks, although less frequently.  In a report for insurance purposes in March 2019, Mr Longbottom’s general practitioner noted that his right hip pain had resolved, but his right shoulder pain, stiffness and loss of function had markedly increased, as had his reactive anxiety.  In a report of May 2019, his psychiatrist noted that Mr Longbottom’s condition had not greatly changed.  He was still experiencing panic attacks about twice per week and suffered generalised anxiety. 
  6. [30]
    In January 2021, Mr Longbottom said, he had an episode of acute pain after jogging on the beach, for which he sought medical advice. The pain, which was “a lot stronger” than he had previously experienced, was in his right-side lower buttock and he thought that it was a flare-up of his hip. In fact, the radiological report shows that the relevant clinical findings were pain in the right lower back and sciatica referred to the buttocks.  A CT scan was taken of L5/S1, revealing degenerative right foraminal narrowing affecting the right L5 nerve root.  Mr Longbottom was injected in February 2021 with a combination of steroids and anaesthetic into the right S1 perineural space.  Before the injection, Mr Longbottom said, he had to lie on the couch with his leg up for five or six days, and after a couple of months the benefit of the injection had started to wear off. 
  7. [31]
    As to his current condition, Mr Longbottom gave evidence that his shoulder had not improved since he ceased physiotherapy in April 2018, when funding for it ended. He still experienced some clicking and cracking, pins and needles and restriction of movement in his hip; it was painful to climb stairs. He was unable to sleep on his right side.  He had not found the consultations with the psychologist of any benefit and the treatment by the psychiatrist, which finished in May 2019 (apparently because of the cessation of funding), had not improved the state of his mental health.    His anxiety and depression remained as it had been, and, if anything, was getting worse. He was still suffering from panic attacks, although not as frequently as in the past.  He presently used diazepam when he was anxious, which might be as often as three times a week, but he had stopped taking his antidepressant medication because of side effects. He was hesitant to mix with his friends and acquaintances, which contrasted with his active social life pre-injury; but he also said that all of his friends were now married, with children, jobs and mortgages, so he saw them rarely.  Prior to the accident he had only had one relationship, which lasted a couple of months, and he had had none since. 
  8. [32]
    Mr Longbottom described his average day: walking to the beach, having coffee, perhaps seeing a friend briefly, and watching television.     He usually had a couple of beers at a hotel with his father in the afternoon.  In a statutory declaration, he acknowledged that he volunteered as a surf judge at a local surf club, on average once per month for between one and three hours.  That role, which was unremunerated, involved his judging a surf competition and organising younger riders. In cross-examination, he acknowledged he was able to walk, and jog a little, on sand.  He agreed that he had not attended a 2018 appointment for a medical examination which the defendant had arranged, because he had to travel to a friend’s wedding; in fact, he said, he had been best man at the weddings of three of his friends in 2018.
  9. [33]
    Mr Longbottom’s mother said that her son did some cleaning but had limited movement in his arm and could not, for example, help paint the ceilings or mow the lawns.  He was reluctant to talk to people and he regularly sat alone in a hotel drinking, something which he had not done before the accident.  He continued to sleep in the loungeroom.  Mr Longbottom’s younger sister said that before the accident he had been very active and fit, and from being a lively, happy person had now become withdrawn and reserved.  He did not go out much and spent a lot of time at home watching television. 

The expert evidence as to Mr Longbottom’s injuries

  1. [34]
    Expert reports were tendered from two orthopaedic surgeons, both of whom had examined Mr Longbottom in late 2019 and both of whom gave evidence.  They were in agreement that Mr Longbottom’s hip and shoulder symptoms were the result of the accident, and I accept that opinion. Dr Bodel noted Mr Longbottom had pain and stiffness in the right shoulder, right hip, neck and back.  He diagnosed a rotator cuff tear, complicated by adhesive capsulitis following surgery, a labral tear in the right hip region, and soft tissue injuries to the neck and back.  (Dr Bodel had been given to understand that Mr Longbottom had had back problems from the date of injury.)  He did not anticipate any further deterioration and expected that the right shoulder would improve a little over time.    In giving evidence, Dr Bodel noted that Mr Longbottom had had the February 2021 scan, after an episode in which (as he reported) he was running on the beach and developed leg pain, which suggested a further exacerbation of the back injury. 
  2. [35]
    When he saw the orthopaedic specialist reporting for the defendant, Dr Morgan, Mr Longbottom was complaining of stiffness and pain in the right shoulder, made worse by abduction or rotation, and some clicking in his right hip with pain on movement.  On examination, Dr Morgan found that Mr Longbottom had lost some range of movement in his shoulder, with stiffness and pain at the extremes of the range he could achieve.  There was also some pain and restriction of movement in the hip joint.  Dr Morgan did not consider that Mr Longbottom had suffered any lumbar spinal injury in the accident. He noted that Mr Longbottom had stated to him that he had first noted discomfort in his lumbar spine about 12 months after the accident. Dr Morgan provided a further report of June 2021 in relation to the February CT scan examination of Mr Longbottom’s lumbosacral spine.  There was some evidence in the CT scan of abnormality at the lumbosacral level, resulting from degenerative disease; the symptomatology, which had progressed since he examined Mr Longbottom, was not linked to the accident.
  3. [36]
    Mr Longbottom was examined by two psychiatrists, Dr Bertucen, who gave a report to Mr Longbottom’s solicitors in September 2019, and Dr Duke, for the defendant, who interviewed him twice, in January and June 2019.  Their views were similar: Mr Longbottom was suffering from a major depressive disorder with anxiety features or an anxiety disorder, resulting from the accident and its sequelae. (The medical records substantiate that view: his symptoms appear to be directly related to the limited success of his shoulder surgery, which in turn was necessitated by the accident.) In cross-examination, Dr Bertucen said that having his attention drawn to Mr Longbottom’s admission to hospital in February 2015 made no change to his opinion. Mr Longbottom had some moderate impairment of social and recreational activities, but he was still able to meet others.  Dr Duke thought it would be in Mr Longbottom’s interest to have his claim resolved because, generally speaking, recovery from workplace injuries could improve once the compensation claim process was resolved and claimants were given a chance to get on with their lives. 

Mr Longbottom’s work prospects but for the injury

  1. [37]
    Prior to his injury, Mr Longbottom said, he had wanted to keep travelling, undertaking labouring work to fund his trips.  In the long term, he might have settled overseas or returned and undertaken work as a concrete pumping linesman again. As to the short term, he maintained that, had he not been injured, he would have stayed working for the defendant, if there were enough work and they had wanted his services.  When it was pointed out to him that if he stayed on the farm, he would not have been able to surf or snowboard, he said that he would have taken occasional weeks off and returned to Sydney.  As soon as the (seasonal) work died down, he would go elsewhere.
  2. [38]
    Mr Reitano, for whom Mr Longbottom had worked in 2014, asserted that Mr Longbottom had worked for him for about a year and rejected the proposition put to him in cross-examination that it was in fact only about two months.  Mr Longbottom himself, however, described it in his statutory declaration as a “short period in the 2014 financial year” and the gross amount earned from it was, according to his tax return, $8,309.00; so it seems that Mr Reitano’s recall in this respect is probably inaccurate. It may be that he has conflated time spent in Mr Longbottom’s company as a friend (the latter’s mother described the two as regular gym attenders together before the accident) with the actual period spent working for him as a contractor.
  3. [39]
    Mr Reitano said that Mr Longbottom had been a labourer/linesman, which was at the lowest level of skill; there were levels above that, to which he could have advanced with on-the-job training.  He had performed well, was very personable and had got along with the business’ clients. Mr Reitano would happily have re-employed him.  Linesmen were currently earning salaries of between $80,000 and $100,000, and they were in demand.  Workers who began as linesmen in their twenties often, when they became more experienced in their thirties, became concrete pump operators, a job for which a driver’s licence was needed.  As to how long people stayed in the industry, he had a worker who had been with him for 12 years; his oldest worker was 44.   

Mr Longbottom’s future work capacity

  1. [40]
    Mr Longbottom has not worked since he was injured, and he has made no attempt to.  His general practitioner, he said, had mentioned the possibility of becoming a personal trainer at some stage, but he did not know if he was allowed to, because of his claim.  He said he had not participated in return-to-work programs, because they would be conducted by WorkCover in Queensland, and he was not willing to relocate. He had not held a driver’s licence since 2007, when he had a provisional licence, although he had some interest in obtaining one; he would like to do so when his claim was finished.  When the court case was over, he would work out what he wanted to do with his future.
  2. [41]
    Mr Longbottom said he had not really thought about what paid work he could do.  He would enjoy a job shaping surfboards and knew someone who might give him a try; he would also enjoy photography. If he could obtain a licence, he might be able to drive a garbage truck, if there were a runner to fetch the bins.  He could not contemplate office work or retail work, for example in a surf shop, because he was an outdoors person and could not be in the same place every day all day; and he did not think he would be good doing “face to face” in retail.  He would not consider work in a call centre or a factory; that was not his type of work.  He had never used a computer.   
  3. [42]
    The orthopaedic specialists who examined Mr Longbottom, Dr Bodel and Dr Morgan, agreed (and I accept) that he was, by reason of his injuries, no longer fit for labouring work. Dr Morgan considered that given his age he ought to be retrained in relatively sedentary work, suggesting that he could work as a machine operator, taxi driver, storeman, data entry operator, or shop assistant. The two psychiatrists who reported gave their opinions on Mr Longbottom’s capacity for work more generally. Dr Duke did not consider that he had any psychological limitation on his capacity to work; a return to work would be beneficial for his mental health.  Dr Bertucen, while regarding Mr Longbottom’s condition as in partial remission, thought that his depression and concentration problems (which appeared longstanding although they might have been aggravated since the accident) would present limitations.  Nonetheless, Mr Longbottom could perform three days’ work a week, and his prognosis depended on in part on his return to work.
  4. [43]
    Mr Longbottom was examined by two occupational therapists, Ms Aitken in January 2020 and Mr Roehrs in June 2020, for the purpose of giving their opinions as to his functional capacity and forms of employment he could undertake.  In addition, a third occupational therapist, Ms Wise, gave an opinion, based on some of the medical reports and Ms Aiken’s report, as to Mr Longbottom’s fitness to obtain a general or commercial driver’s licence and the prospects of his obtaining employment in a driving occupation. 
  5. [44]
    In her report, Ms Aitken observed that Mr Longbottom was no longer suited to any occupation for which he had any previous training or experience and was now best suited to sedentary occupations, for which he would need to re-train.  He would be at a significant disadvantage on the open labour market, although an appropriately qualified occupational therapist could assist him in a return to work. Possible barriers to his obtaining employment included: employer wariness, given his previous injury; the prospect of flare-up in his physical injury; the effect of his anxiety disorder on his work performance; his lack of computer literacy; the competitiveness of the market for part-time employment; and his absence from the workplace since the accident.  The pool of jobs available to him was extremely limited.
  6. [45]
    Mr Roehrs noted that Mr Longbottom as a result of his right hip injury had a diminished capacity for performing the tasks of any occupation which required repetitive or prolonged squatting, kneeling, stair climbing or working on rough ground or gradients.  He also had a diminished sitting capacity and would have to be able to stand when he needed to. He was unlikely to return to any job for which he suited by his experience.  Mr Roehrs considered that Mr Longbottom could perform employment where there was no need for him to reach with his right arm repetitively or above head height where he did not have to undertake heavy lifting or carrying, squatting or kneeling and provided he could alternate between sitting and standing.  He suggested home-based or office-based work.  There was no reason Mr Longbottom could not undertake a basic course to learn computer skills, which would equip him for such work.
  7. [46]
    Ms Wise did not examine Mr Longbottom, but noted that he would have to obtain a learner’s licence and undertake an occupational therapy driving assessment in order to obtain a driver’s licence.  It was likely that any licence would contain conditions that he only drive an automatic vehicle with power steering and a modification of the vehicle in the form of a spinner knob with an electronic indicator.  He would not be able to obtain a licence to drive a heavy vehicle but could obtain a passenger transport licence which would enable him to drive a taxi or rideshare vehicle with the modification already referred to.  He might have some difficulty obtaining work as a taxi driver because of his inability to lift luggage.  He would need his own vehicle with the modification in order to be an Uber driver.  His sitting tolerance might limit the jobs he could take in a driving role.

Submissions on past economic loss

  1. [47]
    The defendant did not advance any argument that Mr Longbottom had failed to mitigate his loss by taking no steps to find work; its submissions proceeded on the basis that he was entitled to recover past economic loss for the full period from injury to the date of judgment: 275 weeks.  Mr Longbottom claimed past economic loss at a rate of $701.00 per week since the date of the accident on the basis that he was earning that at the time of injury, would have kept working for the defendant as long as the work lasted, and then would have earned similar wages working for other employers.  Allowance was made in Mr Longbottom’s calculations for the likelihood that he would have travelled overseas for three months every three years, so that he would, over the period since his injury, have been out of work for 12 weeks. 
  2. [48]
    It was acknowledged that the figure of $701.00 was not uniformly the amount of Mr Longbottom’s wages, but he had been paid that amount in seven of the weeks for which he had worked, so it should be adopted for the purpose of calculations. The defendant’s pay records show Mr Longbottom receiving 15 weekly pay cheques, but it was submitted for him that for three weeks of his employment, he had only been paid in part, because in his commencing and final weeks he had not worked a full week, and for a following week the amount paid represented an entitlement under WorkCover legislation.  (However, Mr Longbottom’s pay cheque for his last week of work, ending 23 June 2016, was for a full amount, so it may be that he had worked all the days required of him; and that was one of the seven weeks said to be representative of his earnings at $701.)  Of the remaining weeks, there were six for which the amounts paid were less than $701.00, which were not explained.
  3. [49]
    The defendant, on the other hand, contended that the better guide was Mr Longbottom’s nett income for the 2015 and 2016 years, which according to its calculations, would result in average earnings of $375.00 per week.  If the 2014 year were taken into account, the average was about $300.00 per week.  For the 2016 financial year alone, the average was $421.00 per week.

Conclusion

  1. [50]
    Mr Longbottom’s average weekly income (after tax was deducted) over 13 of the 14 weeks for which he actually worked for the defendant (not including the first week) was $622.00.  But there is force in the defendant’s submission that an average of the nett income earned from employment over the previous two years is a better guide to what he is likely to have earned over the past five years.  His average income from earnings for the 2015 and 2016 years was $401.00.[1]  That figure incorporates periods for which he was not working because he was his mother’s carer, or because he was overseas in Japan, and is reasonably representative. 
  2. [51]
    However, some allowance should be made for the prospect that Mr Longbottom would have continued in employment of the type he found himself in 2016 with the defendant, which paid at a better rate, which he apparently enjoyed, and which he had maintained until he was injured.  I would allow past economic loss at a mid-point between his average nett income with the defendant and what he earned in previous years, at $500.00 per week.  Since that figure is largely based on an average from years where he was absent from the workforce for periods, there is no need to factor in any further discount for likely absence. 
  3. [52]
    Calculating loss, then, for the 275 weeks since Mr Longbottom’s injury, that would give a figure of $137,500.00.  Adding up the amounts in the WorkCover payment summaries which were in evidence, he received worker’s compensation in an amount of $112,763.00; interest on the balance of $24,737.00 at 0.85% would give a further $1,111.98.  The rate at which superannuation should be calculated on past economic loss was agreed at 9.5%, which would result in a figure of $13,062.50.

Future economic loss

  1. [53]
    Mr Longbottom claimed damages for future economic loss on the following basis: he would have kept working in physical labouring roles on an average income of about $700.00 nett per week for the next 5 years, which, applying a multiplier of 231[2] and discounting by 23% to allow for contingencies and periods of travel (again three months every three years), would amount, for the next five years to $124,509.00.  That covered the period to age 40; for the following decade, it was likely that he would have returned permanently to Australia and would have been hired by Mr Reitano at an income of $90,000.00 per year gross, which, nett, would be $1,320.00 per week.  Discounting by 15% for vicissitudes, the future economic loss figure for that decade was $284,519.00.  Between ages 50 and 67, he might have moved into a less physically demanding role as a concrete operator, in which he would earn $120,000.00, or nett per week, $1,650.00.  Allowing 30% for vicissitudes and the possibility that he might have found himself in a role which paid less, the claim made for that period was for $335,000.00. 
  2. [54]
    It was then acknowledged that Mr Longbottom had still some residual earning capacity, although he did not have the education, aptitude or ability to retrain for sedentary work.  It is possible that he would find part-time employment earning, on average, $250.00 nett per week to retirement age at 67, which over the 32 years to that point would produce earnings of $211,250.00; so that the claim should be reduced by that amount; resulting in an end figure of $532,778.00.
  3. [55]
    The defendant pointed to the following factors which it said should be taken into account in considering Mr Longbottom’s earning prospects had he not been injured.  He had not worked for unexplained reasons for two years ending 30 June 2010.  The medical records showed that he had anxiety symptoms in April 2013, had suffered a depressive episode with anxiety in 2015 and had difficulties managing alcohol consumption; had developed a back condition requiring treatment; and had had past back and neck pain.  All of those difficulties were liable to interfere with his employment in any event.  There was no clarity in the evidence about when Mr Longbottom would actually have ceased to travel and settle down.
  4. [56]
    As to his residual earning capacity, there was agreement between Dr Morgan and the two occupational therapists that Mr Longbottom was physically able to undertake light work. The two psychiatrists did not consider him to be restricted in his employment capacity by his psychological injury[3] and both considered that a return to work or improved function in his shoulder would improve his psychological conditions.  There was some prospect that his adhesive capsulitis would improve.  Interestingly, while posing a much lower rate for Mr Longbottom’s future earnings uninjured – at $375.00 nett per week - than he himself had proposed, the defendant suggested a lower average residual earning capacity, of between $100.00 and $200.00 per week, than that suggested for Mr Longbottom.
  5. [57]
    As to the figure for Mr Longbottom’s likely future earnings uninjured, the defendant reiterated that the $700.00 per week figure was higher than he had actually earned while working for the defendant. Having regard to earnings over the previous two years, the appropriate figure was $375.00.  The prospect of Mr Longbottom’s returning to a career working from Mr Reitano was no more than a mere possibility, given that he had worked in the past for him for only two months in 2014 and not subsequently.  Using the $375.00 per week figure to age 60 would give a figure of $282,750.00. Discounting that amount by 30% to 50% to allow for a residual earning capacity would give a figure of between $145,000.00 and $200,000.00.  An alternative approach would be to allow Mr Longbottom five years to find employment, which would, working on the $375.00 dollar figure, give an amount of $86,625.00; allow a global sum of $100,000.00 for disadvantage in the work market after that; and round up to $200,000.00.

Conclusions – future economic loss

  1. [58]
    I commence my consideration of the appropriate award for future economic loss by making these findings.  I accept Dr Morgan’s conclusion that Mr Longbottom’s degenerative condition of the lumbar spine is unrelated to the accident and represents a naturally occurring degenerative condition.  That is entirely consistent with the absence in the medical reports of any account of back symptoms prior to 2021.  It is likely, I find, that the back condition would have meant some limitation on Mr Longbottom’s capacity to continue in heavy labouring work, independent of the injury.  The defendant is correct in saying that Dr Bodel diagnosed a soft tissue injury to the neck, which on the evidence is not related to the accident, but it seems unlikely in the scheme of things to be of much significance. 
  2. [59]
    Secondly, I accept Dr Bertucen’s evidence that Mr Longbottom’s admission to hospital in February 2015 is of no consequence in relation to his present psychiatric condition.  It appears to have been a reaction to personal circumstances, and there is no evidence that it had any lasting significance. The reference to anxiety in the 2013 notes was an observation of the general practitioner who attributed it to a cause other than an anxiety disorder and did not propose any treatment for it. There is no medical evidence that Mr Longbottom’s alcohol use was likely to affect his capacity to earn income, and from the medical records, it would appear that he was able to minimise his alcohol use when he was fit and happy. 
  3. [60]
    Evidence of what Mr Longbottom might have earned had he continued labouring is scant.  It is confined to what one can discern from his previous earnings, and the evidence of Mr Reitano that he was currently paying concrete pumping linesmen salaries between $80,000.00 and $100,000.00.  But, as the defendant submitted, Mr Longbottom’s work for Mr Reitano’s company was not extensive and was some time ago; notably, he did not return to work for him in the year leading up to his departure for Japan.  I accept the submission that the prospect of his returning to work for Mr Reitano was no more than a chance.  
  4. [61]
    There is no doubt that his injuries have rendered Mr Longbottom unable to undertake the heavy physical work which was his primary source of income in the past.  Although his work history in the past was spasmodic, interrupted by his enthusiasm for travel and for surfing, I think it likely that by now, in his mid-thirties, with his friends settling down, he would have settled to more steady and regular labouring work, although not necessarily staying with one employer.  Consequently, I regard the years prior to the accident as a less reliable guide to his likely future, as opposed to past, earnings. I will proceed on the basis that he could have earned something between the $622.00 nett per week he averaged in the defendant’s employ and the $1,220.00 nett which a concrete linesman at the lower end of Mr Reitano’s  range ($80,000 gross) would earn, while, in due course, making allowance by discount for significant contingencies. I adopt a figure of $900.00 nett per week as representing the income which Mr Longbottom would, but for injury, be able to earn. 
  5. [62]
    There is, then, the question of Mr Longbottom’s residual earning capacity.  It is, as the defendant points out, difficult to assess because he has refrained from attempting work over the last 5 years.  It is clear that it will be difficult for him to re-train, given his educational limitations and pre-existing concentration problems. On the other hand, as a witness he struck me as having a likeable and engaging personality, which is supported by Mr Reitano’s approbation and the fact that three different bridegrooms sought his services as best man within one year. He may well be able to find work through friends, but in any event he would have some appeal to employers more generally.  I think he has reasonably good prospects of finding at least part-time work, possibly in the surfboard shaping about which he is enthusiastic, or possibly in retail, factory or call centre work, about which he is less enthusiastic. I would accept the estimate given by his counsel of a residual earning capacity of $250.00 per week. 
  6. [63]
    Proceeding, then, on the basis of a nett loss of $650.00 per week, that would give a total future economic loss for 32 years on the 5% discount table of $549,250.00.  (I have allowed loss to age 67, which seems to me a more realistic retirement age than the age 60 cut-off advocated by the defendant).  Having said that, that figure has, in my view, to be substantially discounted for two reasons. Firstly, the fact that his lower back condition is already symptomatic does not augur well for labouring work.  Secondly, Mr Longbottom in the past seems to have been content to absent himself from full-time employment for long periods; as in the period of about six years between 2008 and 2014.  Making a 25% discount to allow for the prospect that Mr Longbottom’s degenerative lumbosacral condition would have brought a halt to any labouring career and the possibility, given his history, that he would once again have dropped out of the workforce for a year or more at a time, I arrive at a figure for future economic loss of $411,937.50.  The agreed rate for calculation for future loss of superannuation was 11.33%, which gives another $46,672.52. 

Future special damages

  1. [64]
    In his report, Dr Bodel said that he did not anticipate any need for further surgery on Mr Longbottom’s should or hip; indeed, he recommended physiotherapy (20-25 visits, at $80 per visit) and gym- or water-based exercise programs.  Oddly, he was asked in examination in chief about a supposed reference in his report to the possibility of Mr Longbottom’s requiring hip surgery in the future. However, notwithstanding the absence of any mention of such measures, Dr Bodel gave an estimated cost of $35,000 to $40,000 for a total hip replacement and $8,000 to $10,000 for a hip arthroscopy and said that on the balance of probabilities, he considered Mr Longbottom would require an arthroscopy; it was less likely that he would require a total hip replacement. It was, in fact, the orthopaedic specialist who reported for the defendant, Dr Morgan, who raised in his report the possibility that Mr Longbottom might benefit from an arthroscopic examination of the hip joint.  He suggested that an initial consultation would cost about $500.00.
  2. [65]
    Both psychiatric experts considered that Mr Longbottom would benefit from further engagement with both a psychiatrist and psychologist, the former to treat by means including psychiatric medication, and the latter to provide supportive behavioural therapy. Dr Bertucen proposed review by the former every four to eight weeks, typically costing $250.00 per half hour, and by the latter for six to ten sessions at a cost of $250.00 per hour.  He also advocated vocational training or rehabilitation.
  3. [66]
    As to that prospect, Ms Aitken considered that Mr Longbottom would benefit from the intervention of an appropriately qualified occupational therapist to assist with a vocational assessment, job-seeking, a work trial and eventual job placement, as well as an assessment of any workplace to determine what support equipment might assist. Fifteen hours of such assistance would cost $2,745.00. She recommended a physiotherapy program with hydrotherapy, instructions in safe work techniques and a program designed by an exercise physiologist to improve Mr Longbottom’s strength as well as a pain management program.  Ms Aitken set out the respective costs in a table (the hydrotherapy was available free) and totalled them at $7,339.00. There seems to be a mistake in calculation, because the figures on the table in fact add up to $2,764.00. Ms Aitken also recommended various aids, some to be used in showering and dressing (which collectively would cost $113.89 and would require replacement at intervals), and others for the purposes of meal preparation, laundry, ironing and household cleaning, at a cost of $790.69.
  4. [67]
    Ms Wise had said that in order to drive a private or commercial C class vehicle, Mr Longbottom would need a vehicle modification in the form or a spinner knob with electronic indicator; that, she said, would cost about $2,000.00, and would need replacement every seven to ten years as vehicles were changed over.

Submissions as to future special damages

  1. [68]
    Mr Longbottom contended that he should receive an award for future special damages in an amount of $56,121.00.  That was made up of allowances for: three future orthopaedic consultations at a cost of $1,500.00 and for hip surgery and post-surgery rehabilitation at $10,000.00, representing a figure of $15,000 discounted by 30% for the possibility it was not required; monthly psychiatric appointments for five years at $250.00 per session, which, discounted, gave a figure of $7,219.00; eight sessions with a psychologist at $250.00 per session, or $2,000.00; psychiatric medication at a cost of $5.00 per week for life, which on the 5% discount table would give $4,835.00; 20 sessions of physiotherapy at $80.00 per session, or $1,600.00; pain medication for life at a cost of $6,864.00; future travel (presumably for medical appointments) at $2,500.00; the aids recommended by Ms Aitken at a cost of $905.00 and their replacement costs at $2,891.00; the therapeutic intervention recommended by Ms Aitken, at $7,339.00 (the addition which, on my arithmetic, is wrong); the costs of assistance with a return to work, at $2,745.00; and the vehicle modifications of which Ms Wise spoke, at a cost of $2,000.00, with replacement every 10 years, discounted to $3,723.00.   
  2. [69]
    The defendant contended that there was no evidence that Mr Longbottom needed or would undertake future psychiatric treatment; that a reasonable allowance for pain relieving medication would be $5,000.00 and an allowance for possible physiotherapy another $5,000.00; that he did not need the aids recommended by Ms Aitken; and that an all-up allowance of $12,500.00 should be made, incorporating contingencies such as travel and other expenses.

Conclusions – future special damages

  1. [70]
    I propose to award $32,000.00 for future special damages.  I have come to that figure in the following way.  I consider allowance is properly made for two orthopaedic sessions amounting to $1,000.00 and the possibility of arthroscopy, which both specialists (ultimately) recognised, for which I would award an additional $5,000.00.  Mr Longbottom’s psychiatric treatment seems to have been interrupted by the cessation of funding for it, rather than any reluctance on his part to attend, notwithstanding his view that it had not improved his mental state, and there is certainly a need for it; so I would allow those costs for the proposed five years, discounted at 5%, which on my reading of the tables gives a figure of $7,250.00.  The involvement of a psychologist in treatment was strongly recommended by both psychiatrists, and I think Mr Longbottom is likely to be persuaded to undertake some further therapy, at least to the extent of the eight sessions, proposed at a cost of $2000.  Given the likelihood that there would be some effort put towards finding psychiatric medication to which he is suited, I think he is reasonably allowed the cost of such medication for a further 10 years at the suggested $5.00 per week, which, discounted, would give $2,065.00; and of pain medication, which on the figures given for Mr Longbottom, would be $2.50 per week for 52 years; on the 5% discount table, an amount of $2,462.50.  I would round up the amount for future medication to $5,000.00.
  2. [71]
    Mr Longbottom does need physiotherapy as suggested by Dr Bodel, the kind of programs Ms Aitken suggested, and the assistance in return to the workplace that she also suggested. Given his evidence that he wants to move on with his life once the case is concluded, I would accept, on the balance of probability, that he would want to undertake those. I think, however, that the prospect of Mr Longbottom’s using the kinds of aids recommended by Ms Aitken to perform housework are vanishingly small, and I would allow nothing in that regard, but recognising that the items she recommended for self-care are more likely to be used by him, I would incorporate a modest amount for them, with replacements, into an award of $7,500.00. That amount includes the cost of those aids, their replacements, the cost of physiotherapy and the cost of the programs Ms Aitken suggested.  With a further global amount of $4,000.00 for the possible necessity of vehicle modification and the cost of travel, I arrive at a rounded-up total of $32,000.

Schedule of damages

General damages

$31,810.00

Past special damages

$66,084.19

Past economic loss

$137,500.00

Interest on past economic loss

$1,111.98

Past loss of superannuation benefits

$13,062.50

Future economic loss

$411,937.50

Future loss of superannuation benefits

$46,672.52

Future special damages

$32,000.00

Fox v Wood component

$18,855.00

Subtotal

$759,033.69

10% reduction for contributory negligence

$75,903.37

Less WorkCover refund

$200,433.33

Total

$482,696.99

Judgment

  1. [72]
    I give judgment for the plaintiff, Mr Longbottom, in the amount of $482,696.99. I will hear the parties as to costs.

Footnotes

[1]The defendant provided lower nett income figures for those years than those I have arrived at by deducting tax paid from taxable income, as shown in the notices of assessment; it may be that they were based on gross income less employer deductions. 

[2]The source of this figure is not clear; the 5% tables give the present value of $1 per week in five years as $232.

[3]Dr Bertucen, in fact, thought he might be able to work three days per week.

Close

Editorial Notes

  • Published Case Name:

    Longbottom v L & R Collins Pty Ltd

  • Shortened Case Name:

    Longbottom v L & R Collins Pty Ltd

  • MNC:

    [2021] QSC 242

  • Court:

    QSC

  • Judge(s):

    Holmes CJ

  • Date:

    28 Sep 2021

Appeal Status

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

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