Snell v BP Refinery (Bulwer Island) Pty Ltd [2013] QSC 284

Ann Lyons J

The medical evidence

[6] The medical evidence, particularly the reports of Dr McPhee and Dr Morgan, confirms the injuries outlined above. Those reports also confirm that on 30 September 2010 Mr Snell underwent an L5/L6 decompression with bilateral L5 and S1 rhizolysis, an L5/L6 discectomy, an L5/L6 transforaminal lumbar interbody fusion and an L5/L6 intersegmental fixation with posterolateral grafting and bone harvested from the local area.

[7] There is no doubt that the injuries suffered by Mr Snell were serious as Dr Morgan quantified a 15% whole person impairment solely attributed to the injury to the lumbar spine with an additional 7% whole person impairment attributable to the left shoulder injury which is essentially a 21% whole person impairment. Dr McPhee quantified the whole person impairment at 22% for the spinal injury with an additional 8% for the shoulder.

General Damages

[39] I accept that Mr Snell has experienced pain, suffering and loss of amenities of life. I also note that he has some scarring at the site of the operation but it is not suggested that it is visible or of any particular concern or significance to Mr Snell. Whilst I accept that the pain has abated to some extent, it is not disputed that he still experiences considerable pain. It is also not disputed that Mr Snell has been well motivated to return to work and that he has not exaggerated his symptoms.

[40] The plaintiff claimed an amount of $110,000 in the Statement of Claim for general damages and currently argues that an amount of at least $85,000 should be awarded based on comparable awards for similar injuries. Particular reliance is placed on a number of decisions including Jones v Mollking Holdings Pty Ltd[26] where a 33 year old woman was awarded general damages of $60,000 where the injuries were confined to a fracture of the sacrum and a chronic soft tissue musculoligamentous injury to the lumbar spine which had only warranted an assessment of between 5% and 10% permanent functional impairment. Similarly, in Taylor v Invitro Technologies Pty Ltd,[27] an award of $60,000 was given to a 41 year old woman who had a fracture of the sacrum and a permanent psychiatric injury. The sacral injury had only warranted an assessment of a whole person impairment of between 10% and 11%.

[41] In the present case the plaintiff is considerably older, being almost 52 years of age. However the whole of person impairment is considered to be, at the very minimum, 21%.[28] It would seem to me that the major ongoing issue for Mr Snell is indeed his back pain as the post surgery scarring is of no real concern. The left shoulder injury does cause pain but not to the same degree as his back pain. In this regard I note that in Corkery & Ors v Kingfisher Bay Resort Village Pty Ltd & Anor,[29] which involved a 50 year old male with back and shoulder injuries with a high level of initial pain but less long term pain, the award of general damages was $60,000. I also note that in Cameron v Foster & Anor,[30] Douglas J awarded $80,000 to a 56 year old man who suffered orthopaedic and psychiatric disability to the extent that “the effects of his physical injuries establishe[d] that he [was] in constant and extreme discomfort which intrude[d] into every facet of his life. His enjoyment of life ha[d] been very significantly impaired”.[31]

[42] Having considered the relevant authorities, in my view an award of $80,000 is appropriate to take into account the level of Mr Snell’s whole person impairment and the constant pain he now finds himself in but with due consideration for his age.

Past economic loss

[48] Counsel for the defendant however argued that the plaintiff made significant savings in his travelling to work costs during this period. In particular it is argued that as it is approximately 43.5 kilometres from his residence to his work one way he saves about 60 cents per kilometre or $52.20 a shift. To that needs to be added the amount of $8 for Gateway Bridge tolls per shift. Counsel for the defendant argued therefore that there is a saving of $60 per shift and at four shifts every 10 days, assuming four weeks annual leave, it would equate to 135 shifts per year or $8,100 per year. The defendant argued that those savings significantly reduce the plaintiff’s actual losses and that for the 3.33 years from the date of the accident to now the saving would be in the order of $25,000. The defendant argued, therefore, that the agreed loss of $155,000 should be reduced to $130,000.

[49] There is no doubt that in a calculation of past economic loss, the cost of travelling to work in that period ought to be deducted. However, I accept the principle enunciated by White J in Clark v Hall & Anor[32] where her Honour said:

“Many people take the opportunity to do non-work related tasks when travelling to and from employment to save making other journeys either to save fuel or effort or both and that deduction ought to be allowed …”[33]

Her Honour then reduced the amount of past economic loss accordingly.

[50] It would seem that in his calculation, counsel for the defendant did not include the annualised public holidays of 11 days.[34] Accordingly, I accept that the number of days which should be used in the calculation is 130 days. I will accept a figure of 86 kilometres per round trip at a cost of 60 cents per kilometre. I also accept that the Gateway tolls should be added at a cost of $8 per round trip. I consider therefore that a figure per year of $7,748 is the amount by which the past economic loss should be reduced. If one uses the same proportional reduction as White J allowed in Clark v Hall & Anor, then the annualised saving is $90 per week for 173 weeks between 19 June 2010 and 14 October 2013, which is $15,570. Therefore $155,000 should be reduced by $15,570. I will therefore allow $139,430 for past economic loss.

Interest on past superannuation contributions

[53] I also accept that interest on past superannuation contributions should be calculated at 5% of $7,550 over 1,214 days between 19 June 2010 and 14 October 2013 which yields $1,257.08. I allow $1,255.58 interest on past superannuation contributions.

Future economic loss

[75] The legal principles which need to be considered when there are pre-existing conditions affecting future economic loss are well known and are set out in the 2003 Queensland Court of Appeal decision of Smith v Topp & Anor:[42]

“[29] The appellant argues also that the evidence fails to establish that at any relevant time the appellant’s incapacity would, in any event, have resulted from her pre-existing degenerative condition and that, in consequence, her damages cannot be reduced by reference to that condition. Alternatively, it is submitted that any reduction must be effected by reference to the principles relating to the assessment of loss of a chance stated in Malec v J C Hutton Pty Ltd.[43]

[30] In the following passage from their reasons in Purkess v Crittenden, Barwick CJ, Kitto and Taylor JJ, referring to a discussion in Phipson on Evidence concerning the ‘distinct and frequently confused meanings’ of the onus of proof, namely ‘(1) the burden of proof as a matter of law and pleading – the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence’ said –

‘We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.’”

[76] I also note the analysis of principles in the 2006 New South Wales Court of Appeal decision in State of New South Wales v Burton.[44]

“[69] There may be a difficulty in reconciling the application of the principles stated in Watts and Purkess and those in Malec, as explained by this Court in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [101][112] (Ipp JA, Mason P agreeing). The concurrent operation of Watts and Purkess, with Malec, is succinctly stated by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.14]:

“Neither Watts v Rake nor Purkess v Crittenden was referred to in Malec v J C Hutton Pty Ltd. To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant’s negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff’s damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance.”

[77] On the balance of probabilities, I am satisfied that the plaintiff had a pre-existing back condition and that, together with his depressive condition, unaccelerated by the injury in June 2010, would have reached such a level that he would have been unable to continue to work for much more than 10 years after June 2010. I consider that even allowing for his excellent work history and work ethic, by age 60 years, which is some 11½ years post-accident, it is more probable than not that Mr Snell would have retired due to the combination of pain from his degenerative changes and his ongoing depression.

[78] Accordingly, I consider that an award of damages for future economic loss should cease at age 60, which is approximately another eight years.

Brisbane Barrister – David Cormack

 

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