Cameron v Foster & Anor [2010] QSC 372

Issues:

Assessment of damages and in particular, lost income and earning capacity, age of retirement, the basis of calculation of the preclusion period applicable under the Social Security Act 1991 (Cth), discount allowances and gratuitous damages pursuant to 308E of the Workers’ Compensation and Rehabilitation Act 2003 (“the WCRA”).

Facts:

[1] Douglas J: The plaintiff was a furniture removalist injured in an accident at work on 18 November 2005. A walk board in the truck he was using was released accidentally by a fellow worker as the plaintiff was standing at the rear of the truck. The board fell, pivoting on its base, and its top struck him heavily on the head. The board weighed somewhere between 30 and 40 kgs.

[2] The plaintiff was born on 15 February 1954 and is 56 years of age. His life expectancy has been agreed at 29 years. The defendant has admitted that the circumstances of the incident in which the plaintiff was injured were caused by its breach of duty. The amount of his damages remains in issue.

General Damages

[29] The claim is not subject to the Civil Liability Act 2003. The assessment of damages for pain and suffering and loss of amenities therefore proceeds on a common law basis. Dr Morgan assessed the plaintiff as suffering from a 7 per cent to 8 per cent whole person impairment. His opinions were not challenged by the defendant. The plaintiff’s evidence of the effects of his physical injuries establishes that he is in constant and extreme discomfort which intrudes into every facet of his life. His enjoyment of life has been very significantly impaired.

[30] The effect of his physical injuries is compounded by his psychiatric injury. There is a consensus that he suffers from a major depressive disorder. Dr Byth assesses that as a 25 per cent to 50 per cent whole person impairment as a result of that condition. Whatever figure one attaches to the impairment, the plaintiff is clearly significantly psychiatrically disabled.

[31] In their submissions the plaintiffs relied on assessments by me in Kerr v Queensland Rail [2007] QSC 402, P Lyons J in Corkery v Kingfisher Bay Resort Village Pty Ltd [2010] QSC 161 and White J in Suna v Bridgestone Australia Ltd [2008] QSC 125 to lay the foundation for an argument that the plaintiff’s general damages should be assessed at $80,000.00.

[32] In Kerr v Queensland Rail the plaintiff was aged 26 at the time that he sustained an injury from an earth compactor. He was a track worker with Queensland Rail at the time of the injury. As a result of the injury the plaintiff continued to suffer pain in the mid-back level, with radiating symptoms into his left leg. The evidence was that the plaintiff was depressed for a while following the accident, however this condition was in remission by the time of trial. The plaintiff agreed that his comfortable driving tolerance was about an hour, but under cross-examination admitted to long trips on two occasions in North Queensland. I assessed his injury as major, affecting a young man’s life significantly and leaving him in pain checked by recourse to strong analgesics. I went on to say at [42]:

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

[33] The plaintiff’s counsel submitted that the present case was significantly more serious because every aspect of Mr Cameron’s life has been fundamentally affected by his injuries. He is in constant pain of a severe nature. Further, and compellingly they submitted, unlike the plaintiff in Kerr, Mr Cameron continues to suffer from a symptomatic major depressive disorder. He is, however, an older man than Mr Kerr was.

[34] The plaintiff in Corkery v Kingfisher Bay Resort Village Pty Ltd was similar in age to Mr Cameron. He was a 58 year old man who was injured shortly before his 50th birthday when he fell down a flight of steps. He sustained fractures of the transverse processes on the right side of L3 and L4 and a right shoulder injury and had ongoing difficulties with his back. It ached on long car trips. He described no longer being capable of doing some heavy tasks associated with aspects of his professional work as a geologist. An orthopaedic surgeon considered, however, that with regular exercise the plaintiff would be able to cope with most of his work activities “in a modified sense”. He returned to work not long after the accident, although there were some tasks that he was unable to perform. P Lyons J allowed general damages in the sum of $60,000.00. Again, the plaintiff’s counsel submitted, Mr Cameron, was in a significantly more serious category than that plaintiff. In that case there was no evidence of any psychiatric injury, nor does the judgment suggest that the plaintiff suffered continuous pain in the order of that found in the present case. That the plaintiff in Corkery was functioning at a higher level than Mr Cameron, they submitted, was evident from the fact that the plaintiff there was able to return to work.

[35] The plaintiff in Suna v Bridgestone Australia Ltd was a 40 year old male who sustained cervical injuries working as a storeman. His injuries caused him neck and right arm pain. The plaintiff described neck pain radiating down into his right arm and pins and needles in his hand. White J said:

“[48] The plaintiff relied on his physical skills to engage in satisfactory remunerative employment which supported his young family. That important role has been lost to him. The plaintiff has been deprived of the ‘rough and tumble’ of life with his children. Recreationally, he enjoyed camping, motor bike riding, driving distances and the mutual satisfaction of marital life and they have all been curtailed or come to an end. He has been worried about spinal surgery and its outcome. These are ongoing losses for a relatively young man. If he has successful spinal surgery that is a good outcome but he may not. Mr Lynch referred to Kerr v Queensland Rail, a case with many similarities to the present, where $50,000 was awarded to a plaintiff. Mr Lynch contended that the present plaintiff ought to be awarded $60,000 because he is likely to undergo surgery, whereas in Kerr’s case the plaintiff’s spinal condition resolved. That plaintiff also suffered from depression not here present. Mr Morton has submitted for $40,000 based on the plaintiff’s naturally occurring degenerative condition being accelerated by five years. That is a contention that I have rejected. Taking into account the chance that the plaintiff will have surgery and that it will be successful and the converse, that either the CT induced disc block outcome will not dictate surgery or, that the surgery will not be successful, I assess the plaintiff’s general damage under this head in the amount of $55,000.”

[36] I was also referred to the recent decision of Boddice J in Taylor v Invitro Technologies Pty Ltd [2010] QSC 282 where the 41 year old plaintiff suffered similarly significant orthopaedic injuries to this plaintiff when she was 38 but with more moderate psychiatric consequences than have occurred with Mr Cameron which left her employable although suffering from an adjustment disorder with depressed mood on top of her physical injuries. His Honour assessed general damages in that case at $60,000.00.

[37] The plaintiff’s counsel submitted that, in the present case, the plaintiff suffers both from continuous and severe pain, and from a major depressive disorder of moderately severe magnitude. He has attended numerous doctors, and the Gregory Terrace Pain Clinic, to no avail. Both his physical and his psychiatric injuries are permanent conditions with the psychiatric condition subject to a possible slight improvement to “moderate” rather than “major” in diagnostic terms. He is significantly incapacitated in respect to almost every facet of his life. He has difficulty finding pleasure and he is acutely aware of this limitation. In terms of someone for whom the pleading is made that “he has lost the enjoyment of the amenities of life” this plaintiff, they submitted, is an unfortunate exemplar.

[38] Those submissions seem to me to be accurate and, in spite of Mr Morton’s submission that the prospects of the plaintiff partially improving with psychiatric treatment warranted an award of $45,000.00, it seems to me that the matters emphasised for the plaintiff do place him in a more serious category than the cases to which I was referred. In my view an award of general damages in the order of $80,000.00 is appropriate. Interest, computed at the rate of 2 per cent per annum, on one third of this sum ($25,000.00) from the date of the accident until today comes to $2,602.20.

Past Economic Loss

[45] Given the difficulty he had in obtaining the work as a removalist, it seems to me that the more realistic approach to his past economic loss is to assume that he would have continued to earn something like the money he had been earning during the period up to the accident for his part time work, discounted for the cost of his travel to the work and the probability that his increasing age coupled with his pre-existing back and heart conditions would have decreased the likelihood that he would have been able to work full time as a removalist up until the present to some extent and that he would have had difficulty in obtaining other appropriate work. By the same token I believe I should take the view that he had a reasonable chance of increasing the hours of his work, his rate of pay over time and thus the level of his income had the accident not happened.

[46] The cost of his travel to work[1] was calculated at $109.00 per week which brings the past loss based on his earnings at the time of the accident back to approximately $383.00 per week. Taking into account, however, the parties agreement that his average net weekly income as a casual furniture removalist would have been $581.06 over the period from the accident until the present, I would assess his past loss of earning capacity as $472.06 per week on average, which I would discount by a further 10 per cent taking into account the normal exigencies of life discussed helpfully by Martin J in Waller v McGrath[2] by reference to Professor Luntz’s text, Assessment of Damage for Personal Injury and Death.[3] Mr Morton submitted that a discount of 30 per cent was more appropriate given the plaintiff’s previous back problems, his minor heart condition and the difficulty he experienced in finding work but I have decided to use the lower figure because his pre-existing conditions were not shown to be particularly significant. For the period of the past loss of 253.71 weeks the calculation results in a figure of $107,791.53.

Future Economic Loss

[48] The plaintiff’s evidence is that he could not afford, because of mortgage commitments, to retire before the age of 70…

[50] Having regard to the plaintiff’s age, his modest earnings during the years before the accident, his pre-existing health and the fact that most of his experience lay in the field of manual work, it seems more realistic to me to assume that he would not have worked beyond the age of 65. The parties agreed that, had he continued to work as a casual furniture removalist, his current net earnings would have been $677.20 per week. On those assumptions, reduced by $109.00 as the expense of his driving to work, I have adopted a future earnings level of $568.20 per week. I would not discount the result by as much as 50 per cent, however, as some of the contingencies of life are built into my assumption that he would be more likely to cease work by 65 and the evidence of his state of health was not so strong as to suggest that he would necessarily have been off work for significant periods. Instead it seems to me appropriate to discount his future loss of earning capacity by 15 per cent based on the considerations expressed by Professor Luntz adapted to this particular plaintiff’s circumstances. Accordingly I would assess his future loss of earning capacity as $175,318.11.

Future Out-of-Pocket Expenses

[53] The parties have agreed that the Plaintiff’s actuarial life expectancy is 29 years. The appropriate 5 per cent multiplier for this period is 810. The parties also agree that future general practitioner expenses will be limited to the preclusion period applicable under the Social Security Act 1991 (Cth), that, once that period ends, the plaintiff will be bulk billed and full pharmaceutical expenses will only apply during the preclusion period. Once that period ends, the plaintiff will pay $5.40 per script only. They were not agreed about how to calculate the preclusion period.

[54] The plaintiff’s submissions were that the period is to be computed by adding future economic loss, past economic loss, interest on past economic loss, past superannuation foregone, and future superannuation foregone together, and then dividing the total by 774.10. The resulting figure was said to be the preclusion period in weeks, starting from the date of cessation of WorkCover weekly benefits. The argument was based on s 17(3)(b) of the Social Security Act which deals with compensation recovery in cases other than settlements where the compensation part of a lump sum compensation payment is said to be “so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn, or both.” (Emphasis added.) The Secretary’s opinion was proved before me by means of a printout from the relevant departmental website which takes the approach advanced by the plaintiff.

[55] The defendant’s argument was, essentially, that the Secretary’s opinion was wrong and that all that should be allowed was past and future economic loss without the elements of interest on past loss and loss of superannuation. Whatever the merits of that argument it seems to me that it is one the defendants, or perhaps their compulsory insurer, should take up with the Secretary rather than this individual plaintiff. He will be bound by the Secretary’s administration of that Act even if I had concluded that the Secretary’s opinion had been formed wrongly and should not be applied in determining the preclusion period. The Secretary’s position seems to me to be, prima facie, a rational one and he or she has not been heard on the defendants’ argument. I believe, therefore, I should assess the damages based on the published opinion.

Future mowing

[61] The parties have agreed that the commercial rate for mowing the Plaintiff’s yard is $50.00. They have also agreed that the yard requires mowing on average every three weeks. This gives a weekly net cost of $16.66. This future loss was calculated to be $13,495.00. There was an issue, however, as to whether the sum was recoverable based on s 308E of the Workers’ Compensation and Rehabilitation Act 2003 (“the WCRA”)[5]. It seems to me that s 308B, s 308C and s 308D may also be relevant to the debate. The sections provide:

308B Paid services provided to worker before injury

(1) This section applies if—

(a) before the worker sustained the injury, the worker was usually provided with particular services that were paid services; and

(b) after the worker sustains the injury—

(i) the worker is, or is to be, provided with paid services that are substantially of the same kind; or

(ii) the worker is, or is to be, provided with gratuitous services that are substantially of the same kind.

(2) A court can not award damages for the cost or value of the services that have been provided to the worker after the worker sustained the injury or that are to be provided to the worker in the future.

308C Worker performed services before injury

(1) This section applies if, before the worker sustained the injury, the worker usually performed particular services.

(2) A court can not award damages for the cost or value of services of substantially the same type that have been provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services.

308D Gratuitous services provided to worker before injury

(1) This section applies if—

(a) before the worker sustained the injury, the worker was usually provided with particular services that were gratuitous services; and

(b) after the worker sustains the injury—

(i) the worker is, or is to be, provided with paid services of substantially the same type; or

(ii) the worker is, or is to be, provided with gratuitous services of substantially the same type.

(2) A court can not award damages for the cost or value of the services that have been provided to the worker after the worker sustained the injury or that are to be provided to the worker in the future.

308E Services not required by or provided to worker before

injury

(1) This section applies if the worker usually did not require or

was not provided with particular services before the worker

sustained the injury.

(2) A court can not award damages for the cost or value of any

services provided to the worker after the worker sustained the

injury, or that are to be provided to the worker in the future as

either gratuitous services or paid services, if the services that

have been provided to the worker after the worker sustained

the injury are gratuitous services.”

[62] The defendants submit that no allowance for mowing should be made. Before the accident the plaintiff mowed his own lawn. The evidence is, however, that he has paid a commercial mowing operator to mow his lawn after the accident on occasions and wishes to do so in the future if he had the money. He could not afford this on an ongoing basis before the trial, however, and has otherwise had to rely on his grandchildren and son to do it. The plaintiff’s evidence was that it had been mostly done by members of his family and probably seven or eight times commercially.[6] In those circumstances it is clear that the services were gratuitous only some of the time.

[63] The sections were introduced into the Act by the Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2004 which, the defendants submitted, was designed to get around the anomalies identified by the Court of Appeal in Karanfilov v Inghams Enterprises Pty Ltd.[7] In that case the plaintiff had not paid for any services up to the date of trial but at trial said that she would pay for them thereafter if she had the money to do so. That evidence was accepted by the trial judge and an award was made for future paid care.

[64] On the legislation as it stood at the time the Court of Appeal upheld that approach. Subsequently the Act was amended by introducing s 308E among other sections. It was submitted the amendment was designed to prevent what occurred in Karanfilov v Inghams Enterprises Pty Ltd. An extract from the Queensland Hansard relied on for the defendants to help identify the purpose of the legislation reads as follows:[8]

“The Bill adopts the Queensland Court of Appeal recommendation to clarify when an award of damages for gratuitous care is prohibited.

A Court is prevented from awarding damages for the value of domestic services where these services have been, are to be, or ordinarily would be provided gratuitously to the worker by a member of the worker’s family or household. In line with the original policy intention of the Act, this also clarifies that where gratuitous care has previously been provided to a worker, the worker is not entitled to damages for paid future care.” (Emphasis added.)

[65] The plaintiff here, it was submitted, seeks to do exactly what parliament intended he should not, namely say that although the services had been largely gratuitous in the past, if he had the money he would seek to have them provided at a cost.

[66] It seems to me to be fairly arguable, however, that s 308E is aimed at the precise set of facts that occurred in Karanfilov v Inghams Enterprises Pty Ltd, namely that, if the services had all been supplied gratuitously before the trial then the plaintiff is not entitled to damages for paid future care. It does not deal precisely with the situation where some of the services had been paid for after the accident and before the trial and some had been provided gratuitously.

[67] The reference in Hansard to the situation where services have been or ordinarily would be provided gratuitously does not resolve the problem here to my satisfaction. In this case, not all of the relevant services have been provided gratuitously and it is difficult to conclude on the evidence that the plaintiff’s family would ordinarily continue to provide them. It may well be that that passage in Hansard dealing with the ordinary provision of services is meant as a collective reference to each of the first subsections of the sections I have set out above. For example, s 308C and s 308E deal only with the usual performance or need for services before the injury. Section 308B(1) and s 308D(1), however, when referring to the usual provision of services, distinguish in their terms between the situations that apply before and after the worker sustained the injury.

[68] Section 308C is also similar to s 308E structurally and may be applicable here too. Before the injury, the plaintiff provided the service of mowing the lawn for himself and his wife. Section 308C(2) in then prohibiting the award of damages for services that are provided to him after the injury as either gratuitous services or paid services, if the services that have been provided to him after he sustained the injury are gratuitous services, draws the same distinction as s 308E(2) between paid and gratuitous services and only prohibits their recovery if they are gratuitous services.

[69] If parliament had truly intended to prevent plaintiffs from recovering damages for services, for which they had paid in the past after and because of the injury and before the trial, and would pay in the future, simply because they could obtain them gratuitously sometimes, it could have done so clearly. It does not seem to me that it has done that and, in my view s 308E should not be construed so as to detract from the plaintiff’s personal common law rights unless that consequence is clear. I shall allow the recovery of damages of $13,495.00 under this head.

Conclusion

[76] In my assessment, therefore, the plaintiff’s damages should be assessed as follows:

General damages $80,000.00
Interest on general damages – 2 per cent per annum on 1/3 $2,602.20
Special damages including WorkCover expenses $51,357.89
Interest on actual out of pockets at 5 per cent per annum $909.32
Past economic loss $107,791.53
Interest on net past economic loss at 5 per cent per annum $7,921.04
Future economic loss $175,318.11
Past and future superannuation benefits foregone $25,479.87
Fox v Wood $7,136.00
Future expenses $62,670.49
Total: $521,186.45
LESS WorkCover refund $86,471.29
Net judgment to plaintiff $434,715.16

Judgment

[77] Accordingly I shall give judgment for the plaintiff for damages assessed at $434,715.16 and hear the parties further as to costs.

Brisbane Barrister – David Cormack

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