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Cockburn v The Trust Company Ltd (1) (No 2) [2014] NSWDC 119

  • Recent Decision
  • 02 Jun 2014

Decision of District Court Judge Cogswell SC
The case was summed up by the judge as:
“Raymond Cockburn had his own business as a driver-contractor. His customer was a company called Maxipak. He collected wooden pallets from Maxipak and delivered them to other places. The pallets were loaded onto his track at Maxipak by forklift and offloaded by forklift at their destination.

On 18 March 2010 Mr Cockburn was delivering pallets to a business at Wetherill Park. There was an accident when the forklift truck driver offloading the pallets dropped some. They were spread out over the ground. Mr Cockburn went to the assistance of the forklift driver and helped him clear up the pallets. What Mr Cockburn did not know was that there was a missing bar from a grate in the area where they were clearing up the pallets. Mr Cockburn's foot went through the hole in the grate and into the drain. His leg went right down and he put his right arm out to stop his fall. He injured himself.

Raymond Cockburn has sued to recover damages for his injury. He has sued two companies, The Trust Company Limited as first defendant and Jeminex Brands & Operations Pty Limited as the second defendant. He claims that they were occupying the place where he was injured and that they exercised care, control and management over that place. He claimed in those circumstances that the two companies owed him a duty of care and negligently breached that duty. I should add that the deliveries being made by Mr Cockburn were being made to a company called Beaver Brands Pty Limited. That was the predecessor to the second defendant. No point is taken so far as the identity of the second defendant is concerned.

The Judge found the Second Defendant was negligent and said the following when assessing damages:

“Non economic loss
I turn now to an assessment of the damages which the second defendant ought to pay to Mr Cockburn. He has made a claim for non-economic loss. These are the factors which, in my opinion, are relevant to that claim. The medical evidence suggests that there is a poor or guarded prognosis for his recovery. There is evidence given by his partner of a change in his personality and in his day-to-day activities both social and personal. Mr Cockburn himself has made reference to constant pain (for example at T100 and T103). He does not demonstrate that pain because he "prides himself on being a man". Simple things such as walking the dog he can no longer do because he needs the strength of his right arm to control one of his dogs. He is a man who has always worked and worked hard. The satisfaction which he derives from doing hard work is now limited.

The impact on his life in terms of "pain and suffering" and "loss of amenities of life" (s 3 of the Civil Liability Act) is, in my opinion, relatively extensive. ….. In my opinion, taking into account the medical evidence, Mr Cockburn's own pain and suffering and the changes to his lifestyle, they would be fairly represented by finding that the severity of the non-economic loss as a proportion of a most extreme case is 30%. The corresponding figure for damages for non-economic loss is therefore $127,000.

Past out of pocket expenses
The past out of pocket expenses were agreed at $1,763.25. I accept that they were reasonably incurred and would award that amount to Mr Cockburn.

Future out of pocket expenses
I would regard an allowance of about $10 or $20 a month as being not unreasonable given the state of the evidence. I think the appropriate figure in the circumstances to allow for future out-of-pocket expenses is $5,000.

Loss of earning capacity
I need to consider, according to s 13 of the Civil Liability Act, what are Mr Cockburn's "most likely future circumstances but for the injury". Given his strong work history and his capacity for hard work, I think he would have undertaken the PGH work until the age of 60. As I said, he is now 58. I consider it likely that Mr Cockburn would step back from the hard manual labour involved at PGH to what he is doing now, or perhaps the work at Maxipak. I think he would have stepped back from about the age of 60. For the period from now until he turns 60 - say, for the next two years - I would allow him $600 a week which, when discounted by 5% and an allowance of 15% for vicissitudes, produces a figure of $50,694.

Next, I accept that for some years in less onerous work Mr Cockburn may have earned in the region of $40,000. That estimate is based upon his 2010 and 2011 earnings, as shown in MFI 10. That would have been instead of his current earnings of about $35,000. That represents a loss of about $100 a week. I would allow that for three years, which produces a figure of $12,376 after being discounted using the 5% tables and allowing 15% for vicissitudes.

I would make no allowance for any loss after the age of 65. By then, I expect Mr Cockburn's most likely circumstances but for the injury would be as they are now. Rounding up the figures, I would be prepared to allow Mr Cockburn $65,000 for his future loss in earning capacity.

Domestic assistance

I am prepared to accept that Mr Cockburn required at least six hours domestic assistance for about 15 months after the accident. I base that opinion on his own evidence and the evidence of his partner and his uncle. However, by 13 June 2011 when Dr Wallace expressed his opinion about Mr Cockburn's need for domestic assistance, it was no higher than three hours per week, which is below the threshold. I would therefore allow a claim for past domestic assistance for six hours a week for 15 months at $27 an hour. By my estimate, that comes to a figure of $10,530.

Looking into the future, Mr Cockburn's doctors offer either a "poor" or "guarded" prognosis. Dr Wallace maintains his estimate of Mr Cockburn needing three hours a week domestic assistance in his most recent report dated 9 September 2012. In his report dated 30 August 2013, Dr Bodel estimated that need to be no more than two hours a week. Mr Cockburn's life expectancy is 27 years. The ongoing commercial rate is $40 a week. I would be prepared to allow Mr Cockburn two hours a week at $40 a week for the next 27 years. That produces a figure of $62,640.

Verdict and judgment

I enter a verdict and judgment for the first defendant against the plaintiff. I enter a verdict and judgment in favour of the plaintiff in the sum of $402,973.25 against the second defendant.”

To read the entire judgment click on the link below:

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