Delaney v Shepherd[1999] QDC 10

HELD AT BRISBANE

QUEENSLAND

[Before Forde DCJ]

[D J Delaney v J McG Shepherd & Anor]

BETWEEN:

AND:

JUDGMENT

Judgment delivered: 26 February 1999

Catchwords:

Negligence - Personal Injuries. Quantum in issue. 15%-20% disability in lower left limb. Deduction of transportation costs from future economic loss: Wynn v. NSW Insurance Ministerial Corporation (1995) 133 ALR 154 and Judd v. McLean and Ors (unreported decision of Helman J 19/11/96).

BETWEEN:

AND:

REASONS FOR JUDGMENT - FORDE D.C.J.

Delivered the 26th day of February, 1999

Introduction

The plaintiff, Darryl John Delaney, claims damages for personal injuries as a result of the negligence and/or breach of contract and/or breach of statutory duty on the part of the defendant, James McGregor Shepherd and Lindy Jane Shepherd. The plaintiff had been employed by the defendant as a chainman. The male defendant was a licensed surveyor. On or about 4th January 1995, the plaintiff was working at the Tarong Power Station Mine Extension Site at Nanango. In the course of his employment he was required to “locate” or position pegs for the purpose of surveying the road level. Whilst so doing, he slipped down a steep embankment of some 3.5 metres and suffered a fracture to the calcaneum bone of the left foot. Liability was settled on the second day of the hearing with an apportionment of 75%/25% in favour of the plaintiff.

Nature of Injuries

The plaintiff was admitted to the Ipswich Hospital on 5 January 1995. He was diagnosed with a fractured left calcaneum which was placed in a half cast for some six weeks. After swelling settled he was in a full cast for some nine weeks in total. Subsequent to the injury, the plaintiff suffered ongoing pain together with a complication of reflex sympathetic dystrophy. His pain as a result of the injury has continued to the present time. Initially he took some medication in combination with non-steroidal anti-inflammatory medication. He was treated by his local practitioner, Dr McFerran. By 16 October 1996, it was noted that physiotherapy did not allow full range of movement of his foot. He had been on crutches until October 1995. As at January 1996, the swelling, pain and aching in the left heel continued on both sides.

The plaintiff reported to Dr Gillett that he had trouble walking, particularly on uneven surfaces. His sleep was disturbed and when he worked, he got pins and needles. On examination, it was noted that his left heel did not correct and he was unable to stand on it. He had a antalgic gait and was unable to hop. At that point in time, Dr Gillett assessed the disability at some 20%. He anticipated the plaintiff may require a fusion. It may mean some three to six months off work.

In the subsequent report of 12 March 1998, Dr Gillett reported similar symptoms. He referred to the fact that the plaintiff had difficulty squating and climbing a ladder. In working his tractor or machinery the repetitive use of the clutch aggravated his problem. The plaintiff became self employed as a slashing contractor.

At trial, Dr Gillett was of the view that the impairment was some 15 - 17%. When questioned closely it appears that Dr Tuffley distinguishes impairment from disability. He was of the view that the impairment was some 10%. On closer questioning he conceded that disability is a different concept and it could be as high as 15 - 17%. I am satisfied that the plaintiff has suffered at least a 15% disability to his left lower limb function. He is now forty (40) years of age.

Pain, suffering and loss of amenities

The plaintiff was seen by Ms Coles, an occupational therapist. He confirmed the comments that she made in relation to his ongoing problem with his left lower limb. It seemed that the gait which the plaintiff developed also caused some back problems. It was common ground between Dr Gillett and Dr Tuffley that a change in posture may cause back ache. It seems that that has subsided to some extent. It must be considered as part of the pain and suffering as a result of the accident. The accident, I find, has such considerable effect upon the plaintiff.

I accept the plaintiff's description of his ongoing problems. When speaking of his personal relationship with his wife, he became quite emotional in the witness box. For a man that I found to be stoic in his attitude to work, this was a revealing feature of his evidence. His relationship with his wife suffered to such an extent that he was concerned about his marriage at one point after the accident. The plaintiff built their present home at Camira except for the brick work. He was able to carry out the usual tasks around the home before the accident but now is limited. He has difficulty with gardening and mowing and household repairs. He has become depressive in nature although this has not been diagnosed. This was an observation by his wife. She was able to observe the pain which he was apparently suffering from time to time. I accept her evidence that the present injury has been a major set back for the plaintiff. For someone who had been an active worker for many years and a handyman, the injury has been, to say the least, catastrophic. It has adversely affected his sporting activities. Although he did not play competitive sport he was active in golf, bush walking and fishing. I would assess damages under this head at $40,000. The lump sum repayable to WorkCover is $6,942.50. I allow interest on the sum of $10,000 at 2% between 4 January 1995 and 23 February 1999. This amounts to $825.00.

Past Economic Loss

The plaintiff had a excellent work history. From July 1991 until January 1994, he worked with Motor Coach Australia at Kingston as a coach builder. Thereafter, he worked at Willowstar Pty Ltd trading as Australasian Autobus for some three months. He then worked with Nolan Hydraulics Pty Ltd at Darra from June 1994 to August 1994. Thereafter, he commenced employment with the defendant as a chainman. The plaintiff served an apprenticeship as a coach builder. A summary of his gross earnings can be found in the report of Messrs Rawsons, Chartered Accounts (Ex 14). The earnings were as follows:

It is common ground that since about 1996, the plaintiff has been self employed as a slashing contractor. He earns approximately $205 net per week from this activity. The general thrust of the medical evidence, which I accept, is that it is unlikely that the plaintiff could hold down employment in his previous employment as a coach builder, without having a sympathetic employer to look after him. Mr Johnson, the manager at Australasian Autobus Pty Ltd stated that it was unlikely that a person with a disability could be accommodated as he had previous experience with a person with sore knees in recent times. Even in an supervisory position, the plaintiff could not be employed as over half the time, the supervisory personnel were “hands on”. I find that Coach building is a demanding job with heavy lifting, particularly with chassis and body parts for buses.

The plaintiff has attempted to mitigate his loss by attempting to work back with his previous employer, Mr de Board at Hydra Fluid Connectors. Unfortunately due to his limitation, he had to take rest from time to time and was less agile, according to Mr de Board. This description is consistent with the plaintiff's ongoing difficulties. He is able to “pace” himself as a self employed person.

The defence accepts that there are three different periods to be looked at in relation to pre-trial economic loss. The first period relates to the balance of the contract with the defendant. Although it is not clear whether the defendant would have dismissed the plaintiff, it seems that the contract was running out. Other work may have been available at Tweed Heads but there was no guarantee the plaintiff would continue to work. On the defendant's calculations, the loss would be in the vicinity of eight weeks at $553 per week. For the similar period the plaintiff's counsel contends the loss would be some $4,116. I allow $4,200 for this first period.

In relation to the second period from March 1995 to October the defendant contends that there is a loss of 35 weeks at the rate of $450 per week totalling $15,750. Allowing for the contingencies of unemployment, it is submitted that this figure should be discounted by 50%. I find that once the plaintiff had lost his employment with the defendant, it was likely that he would have returned to his trade as a coach builder. There is other evidence from Mr de Board that he could have obtained employment as a van operator repairing hydraulic hoses. He may have earned between $600 - $700 per week as a coach builder depending upon whether he took a supervisory role and whether overtime was available. Exhibit 12 contains the pay slips provided by Mr Johnson in relation to specific workers for the last eight (8) months. Having observed the plaintiff and considered his evidence that he was unable to cope with computers and changes in the work patterns, I am not satisfied that he would have necessarily taken on a supervisory role. The plaintiff seeks $455 per week net from 1 March 1995 to 1 October 1995 viz $12,740.00. The defendant has conceded some 35 weeks at $450 per week, subject to discounting.

Assuming that the plaintiff may have been off work for some short time between jobs, one has to give some discounting for that contingency. For the second period from 1 March 1995 to 1 October 1995, I allow the sum of $10,000. From 1 October 1995 to 22 February 1999, the defendant calculated 173 weeks at $450 per week, then subjected that figure to a discounting of 20% less the earnings during the relevant period namely $38,500.00. The plaintiff seeks $420 per week over 170 weeks. The $420 per week is arrived at by deducting $205 being the net earnings from the $625. The $625 is the average net income of a tradesman coach builder. The figure of $625 should be discounted to some extent for time off work or alternatively the non-availability of overtime during that relevant period, say $520 per week.

Mr Johnson did not confirm that the $170 net per week overtime was available throughout the relevant period. In fact, one reason which Mr Johnson gave for dismissing the plaintiff was that he would not work on a Saturday, although he did concede that the tone his (Johnson's) part was “not nice” on the morning and was perhaps too demanding. Given Exhibit 12, it is obvious that overtime has been readily available in the last eight months.

I would therefore adopt the methodology employed by the plaintiff of the loss of 170 weeks at $520 minus $205 per week. Multiplying $315 by 170 totals $53,550. This produces a pre-trial economic loss figure of $67,750. To be deducted from this figure is the weekly benefit of $27,288.60. I will allow interest at the rate of 4% on $40,461 over four years. This produces a figure of $6,474.

Future Economic Loss

The methodology referred to previously of a weekly net loss of $420 per week seems to be a fair approach for the future. He is presently 40 years of age. He would have been working in a physically demanding position throughout his life. He had suffered some aches and pains to his back but nothing of long term consequence. The defence argues that the cost of travelling to and from the plaintiff's employment ought to be the subject of a discount in accord with Winn v New South Wales Insurance 123 ALR 154 at 156. The plaintiff would not continue to incur all of the necessary outgoings related to his earnings, such as transportation to and from work. In an unreported decision of Judd v McLean & Ors (No 835 of 1995, Helman J, 19.11.96), 50c per kilometre was deducted for travelling expenses not incurred.

In the present case, the undisputed distance that the plaintiff would have otherwise travelled was 200 kilometres per week, if he continued to work with Mr Johnson. This would reduce the $420 to $340 per week. Using the 5% tables, that produces a total over 25 years of $253,083. Allowing for the usual contingencies of unemployment and the unavailability of consistent overtime, the plaintiff accepted a discount of 40%. That discount would take into account early retirement as well. For example, if one allows a similar figure over 15 years without a discount, a figure in vicinity of $187,000 is arrived at.

However, it cannot be ignored that the plaintiff does have a residual working capacity in his present trade. He may well be able to work on a limited basis and perhaps with a sympathetic employer in his former trade. If he undergoes fusion, there will be less pain attached to his ankle, yet he will have a similar disability. It may well be with less pain when he does undergo this operation that he is able to undertake more remunerative employment. Given the stoic nature of the plaintiff and also the evidence of Dr Tuffley that he is fit for light to moderate work, some further discounting for the future should be considered. I would therefore allow some $125,000 for future economic loss.

However, to be added to that figure is the fact that the plaintiff will be off work for some three to four months to recover from his surgery. Dr Gillett is 75% sure that the operation is necessary. I would allow therefore a further $5,000 for this future economic loss. This produces a total for the future of $130,000. A figure for pain and suffering was included in general damages.

Past Loss of Employers' Contribution to Superannuation

The pre-trial economic loss amounts to $67,750. Allowing the accepted 5% for lost superannuation contributions the total under this head of damages is $3,388. The interest component on this at 4% is $542.

Future Loss of Employers' Contribution to Superannuation

The agreed rate of interest is 6%. The amount allowed is $130,000. I allow $7,800.

Past Care

This figure is agreed at $4,000 with no claim for future care. Interest on $4,000 at 4% over three and a half years is $560.

Future Surgery

This figure is not contested and amounts to $3,250. I am satisfied that the operation is probable.

Special Damages

The agreed specials including Fox v Wood is $13,398.41. Interest at 5% on $1,881.10 for four years is $216.00. The letter was accepted by the defence.

It is ordered that judgment be entered for the plaintiff in the sum of $171,427.50. It is further ordered that the defendant do pay the plaintiff's costs of and incidental to the action including reserve costs if any to be taxed.