Cosson v McIlveen[1998] QDC 311

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 23rd day of November 1998

By this action, the plaintiff claims damages for an injury suffered by him in the course of his employment with the defendant on 12 December 1995. The question of liability has been compromised between the parties, the remaining issue being as to damages.

The plaintiff suffered an injury to his left hand while using a power saw. The injury involved the base of the left palm and the left thumb. He was taken to the Tweed Hospital where he was operated on and found to have damage to two tendons which were repaired, very severe fracture of the first metacarpal with loss of some bone, and division of the palmar cutaneous branches of the median and ulnar nerves: ex. 1. The metacarpal was wired up and his hand placed in a plaster cast. The following day he was discharged from hospital, at his request: p. 8. He went to stay with his mother, who cared for him and did various things that he could not do because of the state of his left hand.

His wound healed satisfactorily, and the wire was removed on 8 February 1996. X-rays at the end of February showed that the metacarpal had united and physiotherapy was begun.

The plaintiff was seen by Dr. Millroy, an orthopaedic surgeon specialising in the hand, on 1 December 1997: ex. 4. Dr. Millroy found the scar well healed, but slightly tender, there was a slight restriction in movement of the interphalangeal joint of the left thumb, and a moderate deformity in the metacarpo phalangeal joint, which was painful when he tried to use his hand or in cold weather. Dr. Millroy thought the condition stable, although there was the prospect of increasing osteoarthritis in the metacarpo-phalangeal joint. Pain could be reduced by an arthrodesis of that joint, which the doctor thought would also improve its function. He assessed a permanent impairment of the left upper limb of 20%, although I take it from his report that this is the situation without the further surgery.

On 1 May 1998, the plaintiff was seen by Dr. White, an orthopaedic surgeon for the purposes of a report: ex. 3. Dr. White found substantial reduction in the movement in the metacarpo-phalangeal joint, and some altered tactile appreciation on parts of the thumb, and a moderate wasting of the thenar eminence. X-rays taken in December 1997 confirmed significant degenerate change, and Dr. White also suggested arthrodesis of the metacarpo-phalangeal joint in the medium term to deal with this. He thought that the effects of the surgery would be limited to pain relief, and also assessed a degree of disability of 20%.

Neither doctor was cross-examined, but the plaintiff said that he was willing to have the arthrodesis, and indeed he appeared to be keen to have it because of the prospect that it would improve his function: p. 25. It is therefore necessary that I resolve the conflict between the doctors as to what effect the surgery would have. I prefer the opinion of Dr. Millroy, partly because he is a specialist in the hand, and partly because, to the extent that the plaintiff is avoiding using the hand because of the pain associated with this joint, it is reasonable to expect that removal or reduction of this pain will make the hand more useable. I therefore think it probable that the effect of the surgery will be to improve the usefulness of the hand to the plaintiff.

At the present time the hand is not painful all the time, but the plaintiff complained of pain when his hand got cold, or if he knocked it against anything hard, or if it was jarred, or if he tried to put stress on the hand: p. 14. The main difficulty in terms of function is that he finds the thumb is of little use in gripping. In the period closer in time to the incident, he could not use the thumb to grip at all: p. 10. There has since then been some improvement in that he can, for example, hold a glass in his left hand, and can hold a plate, but only for a short time: p. 13. It appears that his thumb is still of little use to him.

The plaintiff was born on 24 June 1969: Ex. 3. He was therefore 26 at the date of the accident, and is now 29. He is naturally right handed: p. 15. He has given up squash since the accident, because he is concerned that if he strikes his hand against a wall it will be very painful: p. 13. He can manage tennis (Ex. 4) and golf, although he has had to change his grip, and no doubt his game has been affected: p. 13. The pain immediately after the injury was inflicted would have been very severe (p. 8), but evidently it settled after a few months and is now intermittent (p. 25), although occasionally severe. There is the prospect of the pain becoming worse unless and until the further operation is undertaken, which should give substantial pain relief. I think it appropriate to assess damages on the basis that the plaintiff will undertake that operation. The plaintiff has been left with a fairly extensive and uneven scar around the base of the left hand, extending around to the top of the base of the thumb; the scar is fairly readily visible, but not prominent or disfiguring. In all the circumstances I assess damages for pain and suffering and loss of amenities at the sum of $25,000 of which I apportion $10,000 to the past. In making this assessment I have had regard in particular to the decisions in Barrett v. Drake Personnel Ltd (Plaint 66/97, McLauchlan DCJ, 20.4.98, where however the plaintiff was a little younger, the injury may well have been more painful because of a neuroma, and the injury was apparently of the dominant hand); Solomon v. Inveroona Pty Ltd (Plaint 3394/95, Robin DCJ, 25.2.98, which was also a case involving injury to the dominant hand); Wegrzyn v. Carlton and United Breweries (Q'ld) Ltd (Williams J, Writ 443/94, 28.8.97 where the injury was worse and to the non-dominant hand); Sear v. Spaceframe Building Pty Ltd (Robin DCJ, Plaint 627/95, 7.8.96 where the plaintiff was older); Lane v. Livestock and Meat Authority Q'ld (Skoien DCJ, Ipswich Plaint 106/93, where there was a less serious injury to the dominant hand) and my decision in Collin v. Lalley (Plaint 2745/95,2.3.98, where the injury was more severe, was to the dominant hand, and the plaintiff had developed psychiatric consequences).

The plaintiff was educated to Year 9, but left to start an apprenticeship, which however fell through: p. 6. He then began work as a labourer in the building industry, and has been in that industry for most of the time since, although he has also had some experience working in petrol stations, in hotels and as a tele-marketer: p. 6. He had been working for the defendant as a roof tiler at the time of the accident, and had been doing that work for the defendant for about 2½ years before-hand, although not apparently on a full time basis. He worked as a labourer sub-contractor, being paid on a daily basis for days actually worked, at the rate of about $140 per day gross: p. 7. He suggested that he worked on the average four days a week, earning about $500 in the hand (i.e., after PPS deductions) (p. 7), but his income tax return suggested a level of income significantly below this. In the financial year ending 30 June 1993, the plaintiff had a taxable income of $22,538, so that after tax and medi-care levy totalling $5,044 (ex. 12), his average net income per week was $336. All of this income came from his work as a labourer sub-contractor in the building industry, essentially as a roof tiler. In the following financial year, he earned a gross income of $2,701 from tele-marketing, but evidently most of the income which produced a taxable income of $14,290 was from work as a tiler. The average net weekly income in that year was $240: ex. 12. In the following financial year the plaintiff was again apparently earning money only as a roof tiler, and had a taxable income of $15,350, and an average net income per week of $256: Ex. 12. There was also evidence, which I accept, from the defendant and Mr. Robinson, another tiler who worked for the defendant, that the plaintiff when working as a tiler would not do all the work that was available to be done, but used to have a fair bit of time off: p. 29,33. In view of this evidence, I do not think that part (d) of Exhibit 13 provides a realistic estimate of the earning capacity which the plaintiff has lost. The plaintiff at the time was living with three other men (p. 8), and was apparently not supporting anyone, so he was probably not under any great pressure to earn as much money as possible. No explanation was suggested in the course of the evidence as to why his earnings might have been artificially depressed during the years before the accident, and the evidence from the defence witnesses was that there was always plenty of work available to them. I think therefore that the plaintiff was not fully exploiting his earning capacity prior to the accident.

The plaintiff is entitled to be compensated for loss of or damage to his earning capacity, but the loss is to be assessed on a basis which takes into account the extent to which the damage to the earning capacity is productive of financial loss: Graham v. Baker (1961) 106 CLR 340 at 347. It may be that in the future the plaintiff would have been more concerned to exert himself to exploit fully his earning capacity, but there is no reason to assume that that would have occurred by now, or that it would definitely occur at some time in the future.

It is clear from the evidence on both sides that tiling is a difficult, demanding and strenuous job, and indeed I accept that it is unusual for people to continue to work as tilers beyond their 40's: p. 29,33. The plaintiff found that his back would be stiff at the end of the day after working as a tiler (p. 20), and there was an occasion when the plaintiff was working at a different job after the accident when he had some back trouble: p. 20. It may be that if the plaintiff had continued on tiling sooner or later he would have developed back problems which would have prevented him from staying in that occupation. I think therefore that it is unlikely that, but for this accident, the plaintiff would have been working as a roof tiler until 65, or anything like that.

It is clear from the evidence that the plaintiff can no longer work as a roof tiler. It is sufficient to refer to the more recent report of Ms. Coles, ex. 7, although there was other evidence which supports this proposition. That does not mean that he is unemployable. After the accident he retrained as a plant operator, for which he has obtained a qualification, but he has been unable to get a job in that field: p. 11. He can do that work, although he complains of some difficulty with doing routine maintenance associated with it (p. 15), but it is understandably very difficult to obtain such work when he has no experience. He did get work for three months in 1997 at Smorgans Steel at Ashmore, wiring bundles of pieces of steel together, which he could cope with, although with some increased pain:p. 12. He was able to do the job sufficiently well that, as was conceded, his supervisor was unaware of any restriction arising from problems with his left hand, but that does not mean that he was not experiencing additional pain in doing the work. The job came to an end because he was unable to obtain transport to the work place; he is currently disqualified absolutely from holding or obtaining a driving licence, a disqualification imposed after this accident:p. 19. Indeed, he said he had never held a driver's licence: p. 18. That means that various forms of work which might otherwise be within his capacity are closed to him, and to the extent that that means that, as a result of this injury, he is likely to have greater difficulty in finding suitable employment, it is a factor which tends to increase his damages.

Apart from the work with Smorgans, the only work he has done since the accident has been some additional tele-marketing work, for his mother, which he started only a few days before the trial: p. 14. He works on a commission basis, so it is difficult to know how remunerative this work will be; his evidence was to the effect that it was not necessarily less remunerative than roof tiling: p. 14. He said that while working for Smorgans he was earning about $450 nett per week: p. 12. It is apparent from Ex. 14 that the plaintiff started work on 26 April 1997, and in the first five weeks earned an average of $520 nett per week: Ex. 14. While he held that job he was actually better off financially than he had been before the accident. There were also other activities such as service station operator which he had done in the past which he had not tried since the accident: p. 18. I think the position now is probably much the same as it was before the accident, in that the plaintiff is still not exploiting to the full such earning capacity as he has.

In these circumstances the assessment of economic loss becomes very difficult. I think the appropriate course is to allow a loss of $260 per week from the date of the accident until the plaintiff started work with Smorgans, a period of some 71 weeks. This accommodates the fact that for a time the plaintiff was unable to work because of his injuries, and the fact that it would naturally take him some time thereafter to find employment which was within his remaining capacity. It is, I think, not enough to say that by a particular time the plaintiff was fit to work, since most of his experience had been in a field which was no longer open to him, and in those circumstances it is necessarily going to take time for a plaintiff to obtain some substitute work within his capacity. Exhibit 7 supports the proposition that being out of work for a time in itself creates difficulty in securing a job. I think that the plaintiff is entitled to be compensated for that time as well.

Thereafter, however, I think his loss of income is best assessed on a global basis. The position seems to be that he is able to do work, such as the job at Smorgans, which is at least as remunerative as roof tiling, although I think it is reasonable to conclude that such disability as he has in his left hand is going to put him to some extent at risk in the labour market. I suspect that the plaintiff's difficulties are likely to be reduced as time goes on, and he becomes more established in areas in which he can cope. In addition there is the consideration that, had the accident not occurred, he would probably have had to obtain lighter work eventually anyway. The plaintiff has been unable to obtain work as a plant operator, but if he can get some experience in that field, he will presumably find it easier to get that work thereafter; it is largely just a matter of getting the first job.

It will be apparent that I do not think that the plaintiff's evidence can be accepted as wholly reliable; I think it was generally reliable but he was inclined to overstatement, particularly in financial matters. A number of matters giving rise to doubt were raised in cross-examination. I am not persuaded that the plaintiff has been making reasonable efforts to obtain employment within his capacity since he lost the job at Smorgans, and accordingly, I do not think that the fact that he has been out of work for most of the time since then is in itself of great significance. Nevertheless, I think it is reasonable to conclude that as a result of his injury, part of his pre-accident earning capacity has been lost, even allowing for the fact that he was not then fully exploiting it. For the balance of the period up until judgment I will allow $5,500, which is roughly one third of what he would have been earning nett had he been working during that period as a tiler, at the same earning rate as in 1995. Total past economic loss is therefore $23,960. Interest should be allowed on $14,920 (ex. 9) at 4% for 3 years. There would have been social security benefits paid, but I have no evidence as to the relevant amounts.

For the future, the matter is complicated by the fact that, but for the accident, circumstances may have changed, and he may have been concerned to exploit his earning capacity more fully. On the other hand, it is probable that he would not have been able to work as a tiler for much beyond age 40, given the general experience in the industry, and he would not have been qualified to progress to be a tiling contractor. He would have had to find some other lighter work anyway. When he undertakes the operation on his hand, this should reduce his disability below 20%, although unfortunately the evidence does not disclose to what extent. More importantly, it will reduce the pain, which is likely to make him more willing to tackle a variety of jobs. I think it probable that in the long run the injury will have relatively little effect on the plaintiff's earnings, but some allowance should be made for the possibility that it may do so, and for the possibility that he may be at risk in the labour market because of the state of his hand. I suspect that this factor is a good deal less significant than it would have been had it been his dominant hand which was injured.

In all the circumstances I will make a global allowance for future economic loss in the sum of $30,000. Apart from the matters referred to earlier, I am conscious of the allowances made, also on a global basis, by the Court of Appeal in McRoberts v. Australia Meat Holdings Pty Ltd (Appeal 9295/97,28.4.98) and Mansini v. Martin (Appeal 10560/97,7.8.98), and by McLauchlan DCJ in Barrett v. Drake Personnel Ltd (supra).

A claim was made for loss of superannuation benefits, and it appears in Exhibit 13. The plaintiff was receiving some superannuation benefits prior to the accident. This is a difficult area and I do not think that there is any authoritative guidance as to how such benefit should be allowed for, but it appears to be generally recognised that this is a real loss and some allowance should be made. On the whole I think the appropriate course is to allow 5% of the total economic loss component as compensation for lost superannuation benefits.

A claim was made for gratuitous care by the mother and the brother of the plaintiff. He had a cast on his hand for 2½ months (p. 9) and during that period his mother would have done quite a lot for him, particularly in the early stages when he was still recovering from his injury, when he would have needed a lot of looking after. As time went by however, the things that he could do for himself would have increased, and I think that his estimate of five to six hours per day would not be applicable for the whole period that he was staying with her, which was until March 1996: p. 9. He was then living with his brother for a time and obtained some assistance from him, but after a couple of months he was able to cope fairly well. No doubt even now there are some things that he finds harder to do than if he had not had his injury, but I am not persuaded that there is any continuing need for assistance. The rate is agreed at $10 per hour, and I will allow $2,000 for past gratuitous care. I think the only time when he will need care in the future will be when recovering from the operation.

Special damages paid by WorkCover (ex. 9) of $5,040.61 are uncontroversial, there were further rehabilitation expenses of $560 recoverable by CRS Australia: ex. 10. There was also an amount refundable to Medicare of $20.85 which is uncontentious, and a Fox v. Wood component of $1,549.85: Ex 9. These come to $7,171.

I allow the cost of future surgery of $2,500 (ex. 4), together with loss of income for three months and some allowance for gratuitous care during this period, totalling $6,500. It is not clear when this will occur but I suspect sooner rather than later, and if it is delayed, there will be more pain suffered, so I will not discount this figure.

Summary

There will therefore be judgment that the plaintiff recover against the defendant $45,800 together with $2,080 interest. I will hear submissions as to costs.