WCRA: Pleadings at odds with defence & intervention of ischaemic heart complaint on damages

Symons v The Haggarty Group Pty Ltd [2011] QSC 46

Liability and quantum were in dispute in relation to a work accident where the plaintiff sustained a L4/5 disc protrusion, when metal sheets moved on the scissor lift platform whilst being transferred.

Liability

The defence rested on the argument the plaintiff had failed to prove his case by not leading evidence of the practicability of obtaining a crane or as to the cost involved in doing so. The fatal flaw in this argument is that McMurdo J found the pleadings did not raise this, but rather:

[8] The defendant’s argument is at odds with its pleading. It pleads that Mr Symons was not instructed to use the scissor lift for this purpose, and that it had “implemented control measures” which included “directing staff not to use the scissor lift to carry heavy loads”. The defendant pleaded a denial of negligence on grounds which included the following:

“19. …

(e) The defendant provided safe and appropriate means to carry the corrugated iron including lifting cranes and the provision of manual assistants through his co workers;

(f) The scissor lift was not provided for use to move the corrugated iron;

(g) The defendant’s system did direct that scissor lifts were not to be used for the movement of roof sheeting;

(m) The defendant did not conduct a risk assessment of the use of the scissor lift to move corrugated sheets as the scissor lift was not to be used for this purpose;

(n) The leading hand did not instruct or direct the plaintiff to move the corrugated sheets using the scissor lift.”

Thus on its pleaded case, the defendant appeared to accept that the scissor lift should not have been used and that a crane was a practicable and safe alternative. But its ultimate argument was that Mr Symons had failed to prove his case by not leading evidence of the practicability of obtaining a crane or as to the cost involved in doing so. On the state of the defendant’s pleading, it was not incumbent upon Mr Symons to prove that matter. The issue raised on the pleadings was effectively whether Mr Symons was instructed to use the lift in this way or whether, as the defendant pleaded, he and other staff were directed not to do so. On that issue, as already noted, the evidence of Mr Symons was uncontradicted and unchallenged. I am persuaded to accept that evidence.

Quantum

The plaintiff was 46 at the time of the accident and had an unenviable compensation history in Victoria, especially in relation to his knee, but notably not in respect of his back. His medical history was further complicated by an aggressive ischaemic heart complaint. The intervention of his heart complaint significantly reduced his damages.

The medical evidence was the plaintiff underwent initially a microdiscectomy operation, which did not relieve his pain and then a L4/5 discectomy and fusion operation. Likewise, this did not assist his pain. On this basis Dr Campbell, Neurosurgeon for the plaintiff allowed a 20% whole person impairment solely attributed to the work incident.

Dr Reid, Neurosurgeon on behalf of the defendant diverged completely and allowed a 25% whole person impairment, but only 3% of which was caused by the work incident. Dr Reid’s rationale was that most men aged 46 years would have degenerative spines and the plaintiff’s was similar to others. Dr Reid was not accepted.

The plaintiff’s credibility was attacked in respect of his claim for compensation for his knee and the lengthy period of time whilst in receipt of compensation, when he could have returned to work earlier:

[20] In 1997, the plaintiff claimed to have suffered a knee injury when working for a roofing company in Victoria. He underwent surgery upon his left knee in May 1997and he was off work for about 10 months, he said. In 2002, he claimed to have suffered another knee injury, again at work. On account of this alleged injury he was off work until February 2008 when he went to work for the defendant. During that period of unemployment he continued to complain of knee problems and to receive compensation payments for them. There is no explanation for his apparent recovery when returning to the workforce in 2008.

[21] The only evidence as to his performance in working for the defendant was from Mr Clark, as well as from Mr Symons himself. Mr Clark said that he was a good worker with no apparent physical restrictions. Mr Symons said when cross-examined, that he has continued to experience knee problems. But as to their effect upon his earning capacity, the telling fact is that he worked for the defendant without apparent difficulty for the best part of a year before suffering his back injury.

[22] Therefore I accept the defendant’s argument that he must have been able to work prior to 2008, during at least some of the years in which he was claiming that he suffered from knee problems. But what is the relevance of that finding? It does affect his credibility. But as already discussed, that is not fatal to his case. It is also relevant, however, to what was described as his work ethic, that is to say the prospects that, but for the back injury, he would have continued to work full time over a normal working life, subject to the next matter.

Dr Riha, Cardiologist was called for the plaintiff and Dr Hossack for the defendant. There was some divergence as to the nature of his condition and its impact on the plaintiff’s ability to work in the future.

Dr Riha concluded that the plaintiff would have been able to continue to work as a roof plumber in 2008 and then in lighter manual work for a period of time. She could not qualify his life expectancy. Dr Riha based her opinion on the plaintiff being asymptomatic, however, the plaintiff did have a history of complaints going back to the 1990’s.

Dr Hossack was more pessimistic for the defendant and opined he that the chance of the plaintiff surviving another 10 years was less than 30%.

McMurdo J concluded that Dr Riha was overly optimistic, but that Dr Hossack was not bound to be correct either.

His Honour assessed damages on the premise of:

[30] Undoubtedly his heart condition substantially affects the value of his earning capacity. It will shorten his working life and reduce his life expectancy. Further, it is likely to have restricted him to lighter duties, had he not suffered his back injury. Against these matters, there is the fact that he performed satisfactorily throughout 2008 when employed by the defendant. This demonstrates that he had a valuable earning capacity, of which he was deprived by his back injury.

[31] The suggested discount of but one-third would not, in my view, appropriately recognise the effect of his progressive heart disease upon his earning capacity. He was 46 when injured and it is difficult to see that he would have worked much into his 50s, given the seriousness of his heart condition. His earning capacity should be valued upon the basis of his being able to work full time in a similar position for, say, five or so years from this accident. Of course that is necessarily imprecise: he may have stopped work earlier or later. Consistently with that approach, I will not discount his award for past economic loss on account of his heart condition and I will award him a component for future economic loss calculated by reference to a loss over three years. Of course it will be necessary to apply some discounting for other contingencies, one being that his work ethic might not have remained as it was during 2008.

[37] Accordingly, the award will be as follows:

General damages for pain, suffering and loss of the amenities of life $60,000.00

Interest thereon $930.00

Past economic loss $121,044.00[1]

Interest thereon $11,578.00

Future economic loss $146,314.00[2]

Future superannuation loss $4,389.00[3]

Fox v Wood damages $6,018.00

WorkCover special damages $65,378.82

Past out of pocket expenses $912.00

Interest thereon $100.00

Future out of pocket expenses $3,000.00

Sub-Total $419,663.82

Less refund to WorkCover Queensland $92,919.87

Total $326,743.95

Brisbane Barrister – David Cormack

 

[1] $1,170 net per week = $142,204 less 15% discount and no allowance for superannuation.

[2] $1,179 net per week for 3 years, less 15% discount.

[3] Allowance of 1/3 superannuation.


Related Posts

Recent Comments

    Categories