Taylor v Simon Engineering (Australia) Pty Ltd
[1998] QDC 239
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- Unreported Judgment
- Taylor v Simon Engineering (Australia) Pty Ltd[1998] QDC 239
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Taylor v Simon Engineering (Australia) Pty Ltd[1998] QDC 239
Taylor v Simon Engineering (Australia) Pty Ltd[1998] QDC 239
IN THE DISTRICT COURT HELD AT MT. ISA QUEENSLAND | Plaint No 29 of 1996 |
BETWEEN:
PHILLIP CHARLES TAYLOR | Plaintiff |
AND:
SIMON ENGINEERING (AUSTRALIA) PTY LTD | Defendant |
REASONS FOR JUDGMENT - McGILL D.C.J.
Delivered the 18th day of September 1998
The plaintiff was injured in an accident in the course of his employment on 22 February 1995 while he was operating a grinding wheel. Liability is not in issue, and it remains to assess damages. It is therefore sufficient to say that while the plaintiff was using the grinding wheel something happened as a result of which it came into contact with the inside of the plaintiff's right forearm about three or four inches below the elbow causing a ten centimetre long laceration extending into muscle tissue: p.4, Exhibit 1. The plaintiff is left hand dominant: p.18.
The plaintiff went to hospital where his wound was debrided and cleaned under general anaesthetic: Exhibit 1. He remained in hospital for three days before being discharged home but had to attend to have the wound dressed. A complication developed in the form of swelling under the wound and on 28 February a haematoma was diagnosed and the plaintiff was readmitted and the wound partly re-opened. The plaintiff was discharged home again on 3 March, but required daily changing of his dressing and the wound healed slowly over a period of four weeks.
He returned to work as a boilermaker on 28 March 1995 (p.11), so he was off work for four and half weeks. Since then he has worked, usually as a boilermaker, in a variety of positions, including a period of about one year at Mt. Tom Price in Western Australia: p.8. He was able to cope there with the work required of him as a boilermaker (Exhibit 2) although he did have some difficulty wearing a standard boilermakers glove on his right arm, and had to wear a short glove which exposed him to the risk of burns and injury from sparks and hot metal: p.9A.
The plaintiff was seen by Dr Bruce Low, Orthopaedic Surgeon in July 1997 for the purposes of a report: Exhibit 2. He noted that on examination there was normal grip tension and sensation and normal mobility in the right wrist and it appeared that there was no loss of function of the right arm. The continuing problems associated with the injury were a scar which is fairly prominent but is on in the inside surface of the forearm, and some extreme sensitivity associated with nerve damage. Dr Low concluded that all the tendons were in tact and the muscles were all working, but that the lateral and medial cutaneous nerves of the forearm had been injured and that this had produced a neuroma, together with some numbness of the forearm. This causes extreme sensitivity, so that he feels nerve pain if the scar is touched: p.6. He also experiences some other problems as a result of touching in the form of a rash, and cold shivers up his arm if he holds anything cold. The sensitivity is illustrated by the fact that even water from a shower falling on the forearm can cause pain: p.6. According to Dr Low there is no effective medical treatment for this condition (Exhibit 2) and as a result the plaintiff has been left with a permanent disability.
Dr Low described the effect as fairly mild as it certainly is in orthopaedic terms, and as I understand the position, the main functional consequence of the injury is that the plaintiff has to be constantly on his guard to avoid bumping the scar or having anything touch it in a way which will trigger the nerve pain. I take it that so long as he can achieve this it is pain free, and performs satisfactorily as an arm, but the need to guard it in this way would produce some interference with function, and of course inevitably there will be occasions when, in spite of this care, he does suffer the nerve pain which, when experienced, is severe although temporary. That he is able to guard himself adequately for most purposes is shown by the fact that he worked as a boilermaker for several years after the accident, and is currently working as a labourer.
The plaintiff is now thirty one and was twenty eight at the time of the accident: p.3. The plaintiff said, and I accept, that he suffered immense pain immediately after the accident, although in hospital that was treated with morphine and subsequently he was given pain killing tablets.
The injury would have been painful and unpleasant, and the treatment was prolonged by the complication which developed. There is some scarring which causes some embarrassment: p.10. The scarring is fairly extensive and visible on close inspection, although there is no associated discolouration and it is on the inside surface of the forearm. It would be covered by a long sleeve shirt, which the plaintiff can wear without irritation (p.18), although no doubt ordinarily he would not do so. He has given up playing touch football, and is more cautious when interacting with his children (p.6), a daughter of ten and sons of eight and three (p.15), although he has separated from their mother (p.3) so this is not a constant consideration. There is however some loss of amenity. The injury is unusual but I think there is some real continuing problem.
I have been provided with two decisions in other cases, Pearson -v- Brown (Morley DCJ, Gympie Plaint 31/94, 1.5.97) where the plaintiff was only eighteen when she suffered a laceration which was rather more severe and required longer treatment and left her with more substantial damage to the median nerve. She was regarded as having 10% permanent loss of use of the arm. Damages for pain and suffering loss of amenities were assessed at $30,000.00 including an amount for assistance from her mother which I would ordinarily assess separately. In all the circumstances I think she is much worse off than the present plaintiff. I was also referred to Lawton -v- Oakey Abattoir Pty Ltd (Robertson DCJ, Toowoomba Plaint 111/95, 28.2.97) where a twenty six year old plaintiff suffered an injury to a finger which left him with a 5% permanent disability, principally because of the development of a neuroma which had not responded to treatment. This interfered with his ability to hold things for long periods of time, and produced discomfort after housework and prolonged activity. The award for pain and suffering and loss of amenities was $20,000.00. I think that that neuroma would have been more readily irritated and more significant generally than that suffered by the present plaintiff, who is also slightly older.
In all the circumstances I will assess damages for pain and suffering and loss of amenities in the sum of $10,000.00, of which I attribute $5,000.00 to the past. That amount will carry interest at the rate of 2% per annum for two and a half years.
It is agreed that during the period the plaintiff was off work he received workers' compensation payments in the gross amount of $2,655.77: p.2. It appears from Exhibit 4 that tax instalments totalling $602.00 were deducted from these payments, so past economic loss associated with time off work is $2,054.00 and the Fox v Wood component is $602.00. The plaintiff returned to work as a boilermaker with the defendant, and stayed there until May 1995, although he was also doing some work after 10 April 1995 for other employers, also as a boilermaker: Exhibit 49. He then seems to have worked full time for five months with Epoca Constructions Pty Ltd as a boilermaker and then for about six months for Bolmak Pty Ltd. After a couple of other small jobs he went to Mt Tom Price working for ABB, again as a boilermaker. In that position he was earning $800.00 net per week, although he said that he passed up an opportunity to earn some extra money doing some extra duties, because of the sensitivity of his right forearm. This was a matter which was in some contention during trial.
There was evidence that at the installation at Mt Tom Price it was necessary from time to time to replace some rubber skirts which were fitted around hoppers where they load on to conveyer belts used for moving iron ore to loading bins: p.20. The work involved taking the weight of the rubber skirt with the forearms while the old one was detached (p.15), and later while the new was attached to the appropriate fitting on the hopper (p.13), a process which required a number of men working simultaneously, three or more, up to seven or eight depending on the length of skirting which had to be replaced: pp. 13, 21. According to the plaintiff this was something which he had the opportunity to do as extra work for extra remuneration (p.12), but after trying it on two occasions he declined it because of the pain associated with taking the weight of the skirting on his forearms. Apparently the plant operated continuously (p.22) and the need to replace the skirting could arise at any time, so I take it that the plaintiff was one of those who was offered extra work at a time when he was otherwise off duty, if such a need arose at that time. The plaintiff said that he would be offered this extra work about two times a week, and it meant an extra payment to him of $150.00 to $200.00 a week: p.14.. Evidence was also given by Mr Fischer who had been working with the plaintiff at Mt Tom Price, as a labourer, to confirm that this task needed doing from time to time, and that on two occasions when the plaintiff tried it he had experienced difficulty, and did not try it again: p.20. This was part of the normal duties for a labourer, and the skirts had to be changed four to six times per week: p.22.
I am prepared to accept the plaintiff's evidence that he did not do this work because of difficulties associated with the injury to his arm, and that this caused some loss of what would otherwise be extra income. I am wary about the plaintiff's estimates of the extent of the loss however. In some other respects estimates given by the plaintiff proved to be inaccurate; for example, he gave an estimate of eight days for the period when he was in hospital on the first occasion (p.4) when in fact it was only three days: Exhibit 1. He also gave an estimate of six to seven weeks that he was off work after the accident (p. 5) although under cross-examination he conceded that it was actually four and half weeks: p.11. I do not think the plaintiff was being deliberately dishonest when giving these estimates, but I think that these instances of estimates which could be checked from other sources do indicate that estimates by the plaintiff need to be treated with some caution. I think that that sort of caution is appropriate when dealing with his evidence about potential losses as a result of being unable to do the skirt changing work at Mt Tom Price. Mr. Fischer said that skirts could be changed four, five, six times a week (p.20), although it appears that the work would not involve everyone each time: p.22. The plaintiff said this occurred twice a week (p.15), but he also said it was about a month into the job that he was first asked to do this: p.12. His next attempt was a couple of days later: p.13. I am satisfied that there was some real loss involved and doing the best I can I will allow $4,000.00, which is a little over what the loss would have been if he had been missing out on extra payments of $150.00 net every two weeks during the forty eight weeks he was there.
Since returning from Mt Tom Price, the plaintiff has not worked as a boilermaker. He attributed this to discomfort associated with wearing on his right hand the long gloves normally worn by boilermakers, since the top of the glove rubbed against the scar and this produced a rash as well as irritating the nerve: p.9A. While in Western Australia he wore a short glove on the right hand, which did not irritate the scar but was less satisfactory in terms of industrial safety since it did not protect the forearm from sparks or hot metal, and on occasions he was chipped for not wearing the correct gloves. He has now obtained employment in Mt Isa as a labourer, where he is earning $500 - $600 net per week and declined an opportunity to do a further term at ABB Constructions at Mt Tom Price as a boilermaker: p10. He attributed this to a desire to avoid working as a boilermaker, because of the consequences of his injury, but also because, following his separation from his wife, he is under less economic pressure and is not so concerned about making as much money as possible.
In view of the plaintiff's history since the accident I think that it is unrealistic to say that he is unable to work as a boilermaker because of this injury. It may well be that working as a boilermaker is more uncomfortable if he has to wear the longer glove, or involves additional risk if he wears a short glove, but for most of the time since the accident he has in fact worked as a boilermaker. Furthermore, it appears that at the present time his working as a labourer rather than as a boilermaker is not conducive to economic loss. The schedule which is part of Exhibit 4 does not include the income with ABB in Western Australia, but in the 1995 - 96 financial year when he was working as a boilermaker his total net earnings came to $36,520.00, or an average of about $700.00 per week. During the following seven months he earned just under $15,000.00 net per week (Exhibit 4) an average of just under $500.00 net per week. No doubt some positions pay better than others, and I would expect that work at Mt Tom Price would be particularly well paid. I would expect a boilermaker would earn more than a labourer, although there is no evidence of what a labourer earned there to serve as a standard of comparison. Counsel for the plaintiff frankly admitted that at the present time the plaintiff is not suffering economic loss as a result of his not working as a boilermaker and on the whole I think that was reasonable. Past economic loss is properly assessed at $6,054.00. Of this $4,000.00 will carry interest, at 8% for one year.
Given that the plaintiff is not currently suffering any economic loss as a result of his condition, and the fact that he has in the past worked as a boilermaker notwithstanding his injury, and the fact that he is currently not exerting himself to maximise his earnings, it is very difficult to know what effect this injury will have on the plaintiff's future earning capacity. In addition the plaintiff has not investigated whether the scar could be protected by putting something over it to act as a bridge, and in that way protected from being knocked or rubbed by the standard boilermaker's glove: p.18. There is no evidence that this would work, but the actual area of sensitivity is apparently fairly small (p.19) so it might be feasible. On the whole I am not persuaded that the effect of the injury is that the plaintiff is unable to work as a boilermaker, although no doubt if he does do so in the future this will involve some additional pain to him. Nevertheless I have to consider whether the plaintiff has suffered some real future economic loss, particularly because of the possibility that he may be at risk in the labour market as a consequence of this injury.
Counsel for the plaintiff referred me to the decision of the Court of Appeal in McDonald -v- FAI General Insurance Co. Ltd (Appeal 127/95 310 95) where Williams J (with whom Pincus JA agreed) said that it was necessary to recognise the loss of a chance of earning income when assessing future economic loss, in accordance with principles derived from the decision in Malec -v- J C Hutton Pty Ltd (1990) 169 CLR 638. The facts of that case were rather different from the present, since there the plaintiff was not exercising his earning capacity for reasons other than the back injury he had suffered, and the question was really whether there was any real chance that at some time in the future he would seek to exercise his earning capacity and then experience an actual economic loss. His Honour thought that there was not a great prospect of the loss materializing, but that if he did seek to exercise this capacity his disability would affect the sort of work which would otherwise be most available to him. He noted that the assessment of economic loss in such a situation is not scientific nor a mere matter of arithmetic calculation, and that the assessment must be a global one which reflects all the matters referred to. I think that the same applies here.
As long as the plaintiff is not concerned to exert himself to maximize his earning capacity, I do not think he will suffer any economic loss as a result of this injury. However at some time in the future this situation may change. The plaintiff is still only thirty one, so he has a potential working life in excess of thirty years ahead of him. That however is not the end of the matter, since his experience since the accident has shown that he is ordinarily able to work as a boilermaker notwithstanding this injury. I think it probable however that he has been hoping to get away with this by normally wearing a short glove on his right hand. There is some risk that a safety conscious employer in the future would not be prepared to put up with that situation.
It may be that the difficulty could be overcome by taping some sort of guard on the plaintiff's arm, or in some other way, but that may not prove to be the case. In all the circumstances I think there is some real, albeit small, possibility that at some time in the future the plaintiff will actually suffer some economic loss as a consequence of this condition. Given the level of income which the plaintiff has earned in the past, he does not have to be kept out of boilermaking work for very long before the resulting loss is significant.
In all the circumstances I think it is reasonable to make some allowance for the possibility that at some stage in the future the plaintiff may suffer some economic loss as a consequence of the injury to his arm. The assessment must be a global one and should be a moderate one in the circumstances, and I will allow a sum of $7,500.
There is a claim for gratuitous care in respect of the period after the accident, when the plaintiff said that he needed assistance in various matters, particularly bathing, cutting up meals and dressing: p.7. He initially gave a period of six weeks for this, but under cross-examination conceded that by the time he went back to work he would not have required assistance of this nature: p.18. I think it likely that in the period of a few weeks after the accident the right hand was of somewhat limited use, and required particular care and protection, and I think it probable that the plaintiff's wife did give him a good deal of assistance, although it probably would have tapered off somewhat. I accept that the need to assist him in cutting up food would have arisen from time to time; not all foods can be satisfactorily eaten just with a fork, otherwise table knives would have fallen out of use. I accept that it is difficult to dry oneself, and dress oneself using only one hand, even if it is the dominant hand (the plaintiff is left handed: p.18.) On the other hand, I suspect that the plaintiff's estimate of the time his wife spent caring for him during this period is no more reliable than some of his other evidence about estimates, although again I do not think that this reflects any deliberate exaggeration or dishonesty on his part. On the whole I think if I allow one hour per day as a reflection of average care over the period from the accident to the plaintiff's return to work, excluding those days when the plaintiff was in hospital, a total of 28 days, that would be a reasonable allowance for things done in the home.
In addition, the plaintiff's wife drove him to the hospital to have his dressings changed, which took about an hour every day (p.7) and the plaintiff's father-in-law would drive their children to school in the morning because the plaintiff and his wife were at the hospital at the time when the children would ordinarily go to school: p.6, p.16. This was examined in some detail in cross-examination of the plaintiff, and I think it probably is true to say that strictly speaking the plaintiff's wife could have driven him to the hospital, left him there and gone home and collected the children and taken them to school and then gone back to the hospital to pick up the plaintiff, although it is, I think, understandable that this other arrangement would have been made to ensure that the children did get to school on time. This is a marginal case, but I think the appropriate course is to allow 1½ hours per day for week days up to 27 March which was the last occasion the plaintiff attended the hospital: Exhibit 1. That is 20 days, hence 25 hours. At the agreed rate of $10 per hour (p.2), gratuitous care is therefore $530. I will allow interest at 4% for two years and five months.
Summary
| Pain and suffering, loss of amenities | $ 10,000.00 |
| Interest on $5,000 at 2% for 2½ years | $250.00 |
| Past economic loss | $6,056.00 |
| Interest on $4,000 at 8% for one year | $320.00 |
| Future economic loss | $7,500.00 |
| Gratuitous care | $530.00 |
| Interest at 4% for 2.4 years | $51.00 |
| Fox v. Wood | $602.00 |
Subtotal: | $25,309.00 | |
LESS | ||
Agreed apportionment 20% (p.2) | $5.062.00 | |
Subtotal | $20,247.00 | |
LESS | ||
Workers' Compensation refund (p.2) | $2.656.00 | |
Balance | $17.591.00 | |
I therefore give judgment for the plaintiff against the defendant for $17,094.00, together with $497 by way of interest.
Counsel for the plaintiff | R.J. Lynch |
Counsel for the defendant | R.A.I. Myers |
Solicitors for the plaintiff | V.R. Moffatt & Associates |
Solicitors for the defendant | Thynne & McCartney |
Date of Hearing | 18 August 1998 |