WCRA: Fishlock v Plummer & assessment of damages

Hartin v Rigel Constructions Pty Ltd & Anor [2013] QSC 320

CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT AND/OR BREACH OF CONTRACT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where the plaintiff was employed by the defendant as a delivery driver – where the plaintiff was injured when unloading a roller door from his truck – where the plaintiff was subsequently injured when driving a bus – where liability is admitted by the defendant in relation to the first incident – where medical evidence apportions the contribution of injuries to the plaintiff’s impairment as 75 per cent to the first incident and 25 per cent to the second incident – where medical evidence suggested the plaintiff had a pre-existing degenerative spine condition – whether there is a casual link between the two incidents

 

In issue was whether the second injury was causally related to the first and in particular whether it fell within the second category below.

[41] The relevant principles are summarised by Professor Luntz, citing the authorities of Fishlock v Plummer[2] and State Government Insurance Commission v Oakley:[3]

“The relevant rules where a plaintiff sustains further injury in a distinct subsequent accident have been conveniently restated as follows:

1. where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

2. where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and 

3. where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”[4]

 

The determination of which was resolved on the acceptance of Dr Gillett’s expert evidence over the treating surgeon (Makita (Australia) Pty Ltd v Sprowles.[1])) in favour of the plaintiff.

Applegarth J

General damages

[70] The plaintiff is entitled to be compensated for the pain, suffering and loss of amenities that have been caused by the defendant’s negligence. This does not include pain and suffering which he would have sustained had the first incident not occurred through an increasingly symptomatic back or from a discal derangement of the kind which he sustained in March 2009. He is entitled to be compensated for the additional pain and suffering and loss of amenity that was caused to him by the 23 March 2009 incident by reason of the defendant’s negligence. The injuries that the plaintiff suffered as a result of the defendant’s negligence have restricted his ability to take part in recreational activities although, as noted, he is able to hand out guides and flowers and act as a general support to a band that performs from time to time. He cannot dance and he requires assistance with ordinary tasks that require him to bend, such as floor cleaning and gardening.

[71] Counsel cited a number of authorities relating to general damages in broadly comparable cases. They included Bell v Mastermyne Pty Ltd,[6] McMillan v Kissick,[7] Corkery v Kingfisher Bay Resort Village Pty Ltd,[8] Cameron v Foster,[9]

Krieger v Bundaberg City Council,[10] Luck v Civil Mining and Construction Pty Ltd[11]and Hosmer v Cook Shire Council.[12] I have had regard to those authorities by way of guidance. To these may be added the recent decision in Snell v BP Refinery (Bulwer Island) Pty Ltd[13] in which the whole person impairment of the 52 year old plaintiff was at least 21%, and resulted in an award of $80,000. The plaintiff submitted that an award of general damages of $60,000 would be appropriate to reflect the injuries sustained as a result of the 22 February 2008 incident, which required the plaintiff to undergo surgery and the pain and symptomatology which he continues to experience. The plaintiff further submitted that the authorities supported an award of $80,000 in respect of Dr Gillett’s assessment of the his impairment at 10% which would need to be adjusted to reflect the damage suffered as a consequence of the 23 March 2009 incident. The 75% attributed by Dr Gillett to the first incident to a figure of $80,000 yields general damages of $60,000.

[72] The defendant submitted that an appropriate allowance would be $50,000 if the causal link is established, as I found it to be, and to take account of the plaintiff’s pre-existing condition.

[73] I consider that an appropriate award of general damages is $55,000

 

Past loss of income

[83] The plaintiff lost $1,603 in income prior to the second incident due to time off work in early 2008. I adopt as a starting point a figure of $600 net per week for the period commencing 29 March 2009 or $31,200 per annum. I adopt the same net figure for the years ending 29 March 2011, 29 March 2012 and 29 March 2013. This yields a figure of $124,800 up to the approximate date upon which the plaintiff would have been unable to undertake heavy manual work. For the ensuing nine months I adopt a figure of $470 net weekly income which takes account of his income as a part-time bus driver in early 2009 (which averaged about $375 net per week) and the prospects of progressing from working longer hours as a bus driver. This yields a figure of $18,330 or a total amount of $143,130 for the period after March 2009.

[84] This figure should be discounted to reflect the fact that only 75 per cent of the economic loss can be attributed to the defendant’s negligence. This entails a discount of 25 per cent. There should also be a substantial discount to reflect vicissitudes including unemployment, ill health and injury, including the risk of significant spinal injury given the plaintiff’s pre-existing spinal condition. Overall, I consider that the figure of $143,130 should be discounted by 40 per cent. Sixty per cent of $143,130 is $85,878. To this figure I add the amount of $1,603 being the amount of income the plaintiff lost prior to the second incident. The total figure for past economic loss is $87,481.

[85] I recognise that the plaintiff has a residual earning capacity of about 20 hours per week. However, apart from the small amount which is earned assisting the band from time to time, he has not been able to exploit this residual earning capacity since he became unemployed in March 2009. The defendant submits that the plaintiff has not mitigated his loss. I am not persuaded by this argument. The plaintiff has applied for employment. His inability to obtain employment of any consequence is attributable to his injuries and the general disadvantage which he is at on the open labour market.

Impairment of future earning capacity

[88] Impairment of future earning capacity should be calculated over a period of eight years. After the plaintiff turns 63 he would not have pursued full time employment and any employment he pursued after that date would have been no more than 20 hours per week which reflects his residual earning capacity.

[89] As previously addressed, the plaintiff might have been earning $470 net per week at the present time if he had been working as a bus driver. The plaintiff has a residual earning capacity but his experience in employment, age and physical impairments count against his prospects of obtaining substantial employment over the next eight years. His residual capacity for employment is no more than about 20 hours per week. He has very poor prospects of securing full time employment. He is unlikely to find an accommodating employer with a position that will suit him.

[90] Before discounting for the separate contribution of the March 2009 incident and a variety of contingencies, I adopt a net weekly loss of $470 per week. This figure must be discounted at five per cent per annum over a period of eight years (multiplier 346), yielding a figure of $162,620 .

[91] Given the contingencies that I have previously discussed, including unemployment, ill health and injury, and the further discount of 25 per cent to recognise the contribution of the March 2009 incident, I consider that this figure should be discounted by 45 per cent, which results in an award for impairment of future earning capacity of $89,441.

The defendant submits that no allowance should be made for contract cleaning or lawn mowing on the basis that the plaintiff does not satisfy s 308C or 308E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). It cites the decision of Cameron v Foster.[16] That case considered the relevant provisions before they were relocated and renumbered ss 306F and 306H. Applying that decision, and having regard to the facts of this case, the claim for future lawn maintenance and future cleaning is not precluded by either section. The relevant services, namely gardening and cleaning that have been provided to the plaintiff in recent times, and after he sustained the injury, are not “gratuitous services.” They are services for which he paid the service-provider.

[97] I do not accept that the plaintiff is precluded from advancing such claims. A supplementary statement of loss and damage was filed on the morning of the first day of the trial, but I was informed that the present claim was foreshadowed in an earlier statement of loss and damage. The defendant complained that the relevant receipts were not previously included, but could point to no prejudice in that regard. The receipts relate to services provided in 2013, and I allowed the plaintiff to give evidence about the services and his need for them.[17] Because the plaintiff’s need for future gardening and cleaning services had been previewed in an earlier statement of loss and damage, he did not require leave pursuant to r 548(4) to give this evidence. To the extent that he gave evidence about the cost to him of these services in recent times, there is good reason to allow him to give this evidence, and the defendant was not prejudiced by his doing so.

[98] I consider that future expenses should be the subject of an award. The global claim of $10,000 for physiotherapy and other complementary therapies is justified. The plaintiff has required regular physiotherapy over the last five years as a result of the defendant’s negligence and has expended almost $5,000 in receiving it. The plaintiff has a need for such therapy in the future as a result of the injuries he sustained because of the defendant’s negligence. The approach to assessing heads of loss where damage is not capable of precise proof was considered by Thomas JA in McDonald v FAI General Insurance Company Limited.[18] Given the lengthy period over which therapy will be required and its probable annual cost, a global award of $10,000 is justified. The plaintiff’s claim for future gap expenses, travel expenses and pharmaceutical expenses is slightly less than the amounts conceded by the defendant in its submissions. Recognising the global nature of some of the plaintiff’s claims, an appropriate award for future expenses is $20,000.

Brisbane Barrister – David Cormack

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