Darling v Mapleminster Pty Ltd
[1996] QDC 18
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- Unreported Judgment
- Darling v Mapleminster Pty Ltd[1996] QDC 18
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Darling v Mapleminster Pty Ltd[1996] QDC 18
Darling v Mapleminster Pty Ltd[1996] QDC 18
DISTRICT COURT | No 32 of 1994 |
CIVIL JURISDICTION
JUDGE SKOIEN
ROBIN MAXWELL DARLING | Plaintiff |
and
MAPLEMINSTER PTY LTD | Defendant |
MOUNT ISA
DATE 14/02/1996
JUDGMENT
HIS HONOUR: This is an action for damages for negligence in which only the quantum of damages is in issue.
The plaintiff, then aged 30, was injured on 30 March 1992 when working for the defendant. He was using a high pressure hose to clean corrosion from a steel member which supported some pipes. The corrosion was apparently very bad because the member gave way, allowing the pipes to collapse and strike his head. He was wearing a hard hat so did not suffer head injury, but he felt his head push downwards towards his shoulders and heard a cracking noise in his neck. There was an immediate sensation of pain, so he sought medical assistance. He was admitted to the Mount Isa Base Hospital for two days and then released to convalesce at home.
The injury he suffered was to his cervical spine. The two orthopaedic specialists, whose reports were tendered, agreed the plaintiff has a 5 percent impairment of total bodily function. They also agree that at the time of the accident he had existing degeneration in his cervical spine which would have advanced naturally to the state it was reduced to by the accident. They agree that the acceleration was of the order of five to ten years. Striking an average. I conclude it would have reached that state after 7.5 years, that is in late 1999.
The symptoms experienced by the plaintiff were pain in the neck radiating down the left arm and into the chest wall, as well as headaches. The pain was very intense at first but improved gradually, so that two months after the accident, on 27 May 1992, he returned to his former occupation. He immediately found that his work stirred up his symptoms, so that by the end of the day they were quite distressing. He regularly took analgesic tablets to relieve the pain. This was worse if he bumped his head at work, an event which quite often happened. On 17 October 1993 he decided he could not carry on and left the defendant's employ.
Before 30 March 1992, he regarded himself as fit and healthy. He had experienced occasional neck pains and had been to a chiropractor in Mackay twice in 1989-90 and once in Mount Isa in 1991. However, he had never been disabled from work.
Since October 1993 his painful symptoms have continued. He seldom has a day free of the pain in the neck and arm. He frequently has headaches. Activities such as lifting his three year old daughter, hanging out the washing and mowing the lawn aggravate the pain. His sleep is adversely affected, as is his ability to have and enjoy sexual relations with his wife.
The plaintiff was born on a farm in South Australia. He left school after Year 10, having been an average student, and then worked on his father's farm as well as other farms. Thereafter his various employments included labouring and operating plant at a mine in Central Australia. The prospect of better work brought him to Queensland where, again, he worked as a farm labourer and builder's labourer. He then moved to Mount Isa in early 1991 and, on 1 April 1991, got a job with the defendant. At first he was a labourer, then took up the job he had when he was injured. He described his position as permanent/casual. His hours of work varied but generally exceeded eight hours per day. As at the date of the accident he was earning an average take home weekly sum of about $475. He intended to remain indefinitely working for the defendant and felt that his work was satisfactory and that his job with the defendant was secure. I accept he felt that after a patchy beginning to his working life, he had found a good job which was to his liking.
Mr Farnden, the defendant's Operations Manager, gave evidence that the plaintiff had to be told carefully what was to be done and then needed supervision. From that, Mr Richard Trotter, counsel for the defendant, invited me to conclude that the plaintiff's employment with the defendant was not secure. I am not prepared to find that. He worked for over a year before he was injured, and there is no evidence that he was an unsatisfactory employee during that period. Farnden did not join the defendant until after the plaintiff had returned to work following the accident.
After suffering his injury (which, it seems to me, might not have been sustained had there been careful instruction and supervision) it does not surprise me that the plaintiff might have been rather tentative at work. But importantly, Farnden described his performance as “not too bad” and did not suggest that the plaintiff's job as the operator of a high pressure hose was in jeopardy. In fact, he said that the plaintiff passed some sort of informal test in that job. It seems that at about this time the defendant reorganised its work so that the operators of high pressure hoses were required to take a practical and written test. There was no evidence to suggest that the plaintiff might have failed that test.
All in all, therefore, I conclude that had it not been for the accident the plaintiff would probably have continued in his pre-accident occupation with the defendant until late 1999 at least, earning the income paid to such operators. I do, however, think it likely that the defendant's re-organisation of the wage structure in 1994 would have resulted in the plaintiff earning a little less than the average net weekly sum of $545 which he was receiving when he finally left the defendant's employ in October 1993. Exhibit 12 would support that, even though the comparative merits of the employees whose wages are recorded there cannot fully be estimated. I propose to discount the weekly sum to $500 net per week which, I think, would also allow adequately for the vicissitudes of life which might have befallen him.
From 17 October 1993 to today is about 121 weeks, so the loss to date is $60,500. The income lost for the eight weeks off work immediately after the accident, at $475 per week, is $3,800, making the total to date income which he would have earned had he not been injured and had he remained employed with the defendant at $64,300.
That figure of $64,300 represents my assessment of what the plaintiff would have earned to the date of trial had he not suffered the injury on 30 March 1992. During that period he has actually earned about $800 working as a car detailer in September-October 1995. The figure for lost wages to date of trial is therefore $63,500.
Interest on past loss of income is allowed at 5 percent (i.e. one half of 10 percent) for two years (i.e. since 10 February 1994 when Workers Compensation payments ceased) on $50,454 (i.e. $63,500 less $13,046 Workers' Compensation weekly benefits). That amounts to $5,045.
Mr Trotter submitted that the loss to date should be discounted on the basis that since leaving the defendant's employ in October 1993, the plaintiff has not mitigated his loss by seeking reasonable employment. Since that date he has undertaken a job retraining programme with the Commonwealth Employment Service, but with the exception of the car detailing job has had no paid employment. He has received unemployment benefits until recently when he ceased receipt of that and began to receive sickness benefits. He spent a couple of months in Mount Isa helping his father-in-law in a radiator repair business, but I accept that he was simply doing odd jobs and receiving no more than a bit of pocket money occasionally. He has gone to retail businesses in Townsville, where he now lives, some six or seven times to inquire after jobs but without success. The car detailing job occupied one day per week for about eight weeks, each day's work lasting nine to ten hours, and he received about $99 each time. He found it too physically demanding and gave it away. Once or twice he also ferried a car from Townsville to Cairns, which he found he could manage at his own pace, but found the return bus trip aggravated his pain.
The defendant must, of course, take the plaintiff as he finds him. I formed an impression of the plaintiff that he is aware of the indignity of his lack of employment and finds it upsetting. His personality and history do not qualify him very well to overcome his reduced capacity for work. He has insufficient education and perhaps also intellectual capacity to go into clerical work. His background is one of intermittent labouring, although he seems always to have been keen to get work. The one permanent job he obtained with the defendant ended after he was injured and that injury prevents him from doing the sort of work he had always done. He has tried to do rather physically undemanding work as a car detailer, but that was beyond him. He considers that bar work, for example, would involve too much exertion. The only possibility he envisages is some sort of job serving behind a counter, presumably of light goods, which are easily accessible so that he does not have to bend or stretch too much.
In Thomas v O'Shea (1989) Aust Torts Reports para 80-251, the Full Court of Western Australia, after a detailed consideration of the authorities, held that once a plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment or that his condition has prevented him from obtaining alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities are open, including the state of the labour market and likely earnings. I propose to follow that authority.
The defendant has not satisfied that onus except, I concede, in the general sense that because the plaintiff has earned a little as a car detailer, it is probable that similar jobs involving less physical stress, and therefore within his capacities, are available from time to time. Despite that it seems to me, on the state of the evidence, that to allow for a notional income of more than $50 per week from such work would be unfair to the plaintiff. I set such a low figure because of the fact that he has not been able up to the present to find work that he can manage.
In his evidence the plaintiff said that there was the possibility of obtaining lighter work from the defendant but that he did not follow it up. However, I do not think that a finding adverse to him can be made on that subject. Farnden, who was the defendant's Operations Manager, said that the plaintiff complained to him on more than one occasion in 1993 of the physical difficulties he was experiencing. It seems to me that if the defendant had alternative employment for the plaintiff, Farnden would have given evidence of it. Anyway, the evidentiary onus lay on the defendant and no such evidence was given. So future economic loss is estimated at the rate of $450 for 3.5 years which, on the 5 percent tables, is $75,600.
While the plaintiff's physical disability is assessed by the doctors at only about five percent of bodily function, in my opinion it is nonetheless a painful one which has greatly changed his life-style for the worse. The assessment of a figure for pain and suffering and loss of amenities is made on the basis that he undergoes these disabilities 7.5 years earlier than he would have naturally. I fix that sum at $30,000 and, much of it having already been experienced, allot $20,000 of that as a component to date. Interest on that at two percent for four years is $1,600.
Special damages are:
(a) medical expenses paid by Workers Compensation Board | 1,229.75 |
(b) rehabilitation | 2,484. 11 |
making a total of | 3,713.86 |
No interest is assessable on those sums as he has not been out of pocket.
The Fox v. Wood component is $943.10. Damages are thus:-
(a) pain and suffering | $30,000 |
(b) interest thereon | 1,600 |
(c) past economic loss | 63,500 |
(d) interest thereon | 5,045 |
(e) future economic loss | 75,600 |
(f) specials | 3,713.86 |
(h) Fox v. Wood | 943.10 |
TOTAL | 180,401.96 |
The amount which is refundable to the Workers Compensation Board is 17,878.13.
I give judgment for the plaintiff against the defendant in the sum of $162,523.83.
...
HIS HONOUR: I order the defendant to pay the plaintiff's costs of and incidental to the action to be taxed on a solicitor and client basis. I grant liberty to apply.
...
HIS HONOUR: I further order that the money payable to the plaintiff pursuant to this judgment be not be paid to the plaintiff until the managing director of the Health Insurance Commission issues a notice of charge pursuant to the “Health and Other Services Compensation Act 1995”.