DISTRICT COURT OF QUEENSLAND

1. [1]
   This proceeding sought damages for personal injury suffered by the plaintiff in his employment on Tuesday, 2 June 1998. Liability was admitted.

2. [2]
   The plaintiff, who was employed as a courier driver, was lifting a heavy engine from his truck when he felt “a twinge” in his right shoulder. He continued working that day. The pain increased in his right shoulder until it became quite severe. He saw a doctor that evening and was given anti-inflammatories and a rub. He underwent an ultra sound. It demonstrated no abnormality. He continued working but with assistance with heavier work. His shoulder got worse. Its function remained compromised and he had difficulty with lifting tasks. The following week “he had a slip” whilst carrying some cyclone rods. In evidence he said that about that time, perhaps a couple of days later, bruising began to show strongly on his upper right arm and body (see photograph Exhibit 4). He continued to work with difficulty. His condition did not improve. Another ultra sound on 24 August 1998 demonstrated a complete rupture of his supraspinatus tendon. He ceased work, commencing on workers’ compensation on 26 August 1998. He was referred to Doctor Ho, orthopaedic surgeon at about that time. On 29 September 1998, the plaintiff underwent surgical repair performed by Doctor Ho. I am uncertain of the reason for delay. A large tear of the rotator cuff was found involving the supraspinatus, infraspinatus and part of the teres minor. Further surgery, debridement and manipulation under general anaesthetic, was required eight weeks later after the wound became inflamed.

3. [3]
   Evidence by way of reports from a number of orthopaedic surgeons was received. Doctor Ho detailed his observations, the surgery and treatment under his care.

4. [4]
   Doctor Ross, orthopaedic surgeon saw the plaintiff on the 31 March 1999. He considered it reasonable to conclude that the massive rotator cuff tear related to the plaintiff’s employment. Whilst it was conceivable there may have been a small pre-existing tear, the major problem being experienced by the plaintiff related to the incident the subject of the proceeding. He considered the plaintiff’s permanent impairment would be fairly substantial but that further time should be allowed for improvement.

5. [5]
   Doctor Curtis, orthopaedic surgeon saw the plaintiff on 23 June 1999. He concluded that the plaintiff “in all probability” sustained an acute and complete rotator cuff tear. He considered the considerable bruising in the photograph was indicative of extensive soft tissue injury. The plaintiff’s condition had stabilised, leaving the plaintiff with considerable residual weakness, stiffness and discomfort in his right arm. There was considerable restriction of active, and to a lesser extent, passive movement of the right shoulder girdle with wasting and weakness of the right arm amounting to a 20 per cent permanent impairment of the right upper limb as a whole, wholly attributable to the effects of the injury. Doctor Curtis also noted a pre-existing injury to the plaintiff’s left hand involving the little and ring fingers as a result of division of the flexor tendons, resulting in an inability to flex the fingers at the proximal joints and additionally the little finger at the distal joint.

6. [6]
   Doctor Nutting, orthopaedic surgeon saw the plaintiff on 17 November 1999. He found global weakness and loss of function in the plaintiff’s right shoulder. He considered there was little prospect of improvement. He assessed impairment of the plaintiff’s right shoulder at 30 per cent of the right upper limb, although he expressed a view that most of that would be due to attrition related to work over time. He went on to say that it was very likely given the plaintiff’s history that a more significant contribution to the plaintiff’s condition was made on 2 June 1998 and one week later when he fell. He considered that two-thirds of the plaintiff’s “problem is related to the incidents of 2 June 1998 and the sequelae”. He agreed with Doctor Curtis “with respect to the assessment referable to the injury of 2/6/98 in particular”.

7. [7]
   I note that it appears the plaintiff told Doctor Cross that bruising was evident 24 to 48 hours after the incident of 2 June, whereas in evidence he said it was at, or some days after he fell about a week later. Doctors Curtis and Nutting on one view of their evidence, appear to be of the view the bruising emerged shortly after the 2 June incident. The plaintiff said in evidence that the information he provided to the doctors he saw was truthful. It is now over two years since he was injured.

8. [8]
   I considered the plaintiff to be a genuine man in his evidence. I considered his evidence to be entirely frank. I accept his evidence. I find the plaintiff suffered a significant tear to his rotator cuff as a result of the incident of 2 June 1998. The injury may well have been exacerbated when he slipped carrying rods a week or so later. Conservative treatment continued. However symptoms worsened. Eventually surgical repair occurred but was complicated by the development of deep seated sepsis requiring further surgical intervention.

9. [9]
   The plaintiff was born on 26 February 1941. He was 57 when injured. He is 59 now. He is left handed but because of injury to his left hand suffered when he was young he has used his right hand to do some things which are difficult to do with his left hand.

10. [10]
    The plaintiff’s working life has included work as a carpet layer when he left school, operation of a dairy farm for approximately 15 to 20 years, owner/operator of a courier business for about 14 and a half years. In October 1994, he sold the latter business to the defendant. His son remained in the defendant’s employment. In November 1995, when his son was injured and unable to work, he returned to work for the defendant as a courier driver. He remained in that employment until 26 August 1998.

11. [11]
    The plaintiff developed some symptoms in his back after he had started in the courier business. The symptoms came on and progressed over time. They caused some limitation in his ability to bend and lift and twist. It had apparently never caused any lost work time. He had intermittent massage.

Loss of economic capacity pre-trial

12. [12]
    The plaintiff’s wife has suffered ill health since at least 1990-1991. That contributed to the sale of the business in 1994. The plaintiff contemplated retirement. He and his wife had built a home on acreage they had purchased at Buderim. After he was injured, he thought he would not be able to work again. Maintenance of the property was too much so they sold it realising a capital gain.

13. [13]
    The plaintiff has not worked since 26 August 1998. He said that had he not been injured he would have continued working probably until 65 years of age. I accept that if circumstances permitted he would probably have done that. I do not regard the evidence about the state of his back of particular significance. Many men of the plaintiff’s age from all sorts of work backgrounds experience some discomfort in their back which is managed as part of daily living and working.

14. [14]
    The evidence disclosed that around Christmas 1997, the plaintiff mentioned to the defendant about working fewer hours. After the accident and a further bone scan his wife had, he spoke to the defendant about only working three days a week or about more money. His wife’s condition had deteriorated.

15. [15]
    I find the plaintiff’s capacity to earn income was adversely affected by the injury to his right shoulder and the consequences thereof. He was a 57 year old man whose work experience was in work which required two able arms. His right arm use is impaired. It is his non-dominant arm. However a pre-existing injury to his naturally dominant hand has meant the plaintiff has relied on his non-dominant upper limb in tasks requiring digital dexterity. I find the effect of the injury on his income earning ability since the injury has resulted in financial loss to him.

16. [16]
    Exhibit 7 is a schedule of calculations of past economic loss prepared by the plaintiff. I accept the reasoning and the calculations thereon. However, I have reduced the amount by 20 per cent to reflect the chance the plaintiff would have reduced his working to care for his wife and for other contingencies.

17. [17]
    I assess damages under this head in the sum of $31660. Taking account of workers’ compensation received, I assess interest at five per cent on $15692 for the period since the plaintiff ceased work on 26 August 1998 rounded off in an amount of $1640.

Past loss of employer’s contribution to superannuation

18. [18]
    I have assessed this at six per cent of the amount of past economic loss, a sum of $1899.

Loss of economic capacity post trial

19. [19]
    Counsel for the defendant referred me to Section 317 of the WorkCover Queensland Act 1996.  It provides:

“A court may award damages for future economic loss or damages for diminution of future earning capacity only if the claimant satisfies the court that because of the percentage of WRI (work related impairment) resulting from the injury sustained, there is at least a 51 per cent likelihood that the claimant will sustain the future economic loss or diminution of future earning capacity”.

20. [20]
    The degree of permanent impairment attributable to the plaintiff’s injury was assessed by WorkCover at 10 per cent and the WRI at eight per cent (see Exhibit 2). Counsel contended that given the WRI of eight per cent the plaintiff could not establish there was at least a 51 per cent likelihood he would suffer future economic loss or diminution of future earning capacity.

21. [21]
    WRI is defined in Section 41 of the Act.

1. (1)
   A worker’s work related impairment from injury is the worker’s entitlement to lump sum compensation under section 198 expressed as a percentage of statutory maximum compensation calculated under section 201.

2. (2)
   … 

Section 196 of the Act provides inter alia that where a worker has sustained a degree of permanent impairment from injury, the worker is entitled to a payment or an offer of payment of lump sum compensation for the permanent impairment.  Section 197 of the Act provides inter alia for assessment of a worker’s injury to decide if it has resulted in a degree of permanent impairment.  Section 198 of the Act provides inter alia that when the assessment indicates a worker is entitled to lump sum compensation “the amount of the lump sum compensation must be calculated under a regulation having regard to the degree of permanent impairment and the table of injuries”.  Section 201 then provides inter alia that where the worker is assessed as having a degree of permanent impairment:

WorkCover must calculate the worker’s WRI…

2. (2)
   …under a regulation having regard to:

1. (a)
   the worker’s entitlement to a lump sum of compensation calculated under section 198…

The regulation utilises both the degree of permanent impairment assessed and the table of injuries.  It results in the WRI being the amount of lump sum compensation payable under the table expressed as a percentage of the maximum statutory compensation provided for under the Act.

22. [22]
    Damages for both past and future economic loss are awarded “because the diminution of (the plaintiff’s) earning capacity is or may be productive of financial loss”: Graham v. Baker (1961) 106 CLR 340 at 347; Arthur Robinson (Grafton) Pty Ltd v. Carter (1968) 122 CLR 649 at 658.  Section 317 of the Act requires that no such damages be awarded for the future unless the court is satisfied that there is at least a 51 per cent likelihood that future financial loss will occur.  It prevents an award being made valuing the chance that future earnings will be lost unless the court is satisfied that chance is at least a 51 per cent likelihood.

23. [23]
    As I have already observed, given the plaintiff’s age and background, the state of his right shoulder and the pre-existing disability in his left hand, his earning capacity has been affected. In considering whether or the extent to which that will probably produce financial loss, the evidence I have already referred to related to his wife’s ill health, cannot be ignored. Nor can the evidence that despite that, he continued to work for about four months after he was injured with difficulty and discomfort. He is now 59 year old. I find that had he not been injured the plaintiff would have probably continued working although as he acknowledged he was interested in either working less days or being paid more money. It is clear enough he was conscious of his wife’s need for care and his responsibility in that regard. I am satisfied he intended to work to utilise his income earning capacity to earn money, balancing that against his responsibility to provide care for his wife. I am satisfied that as a result of his injury there is a greater than 51 per cent likelihood the plaintiff will suffer economic loss.

24. [24]
    I have used as a starting point, working to age 65. I have discounted at five per cent to a present value and discounted further by 50 per cent to reflect the ordinary contingencies and the responsibility for care for his wife. I assess a sum of $47000.

Future loss of employer contributions to superannuation

25. [25]
    I have assessed this at 7.5 per cent of the amount of the award for future economic loss. I assess the sum of $3525.

Medical Expenses

26. [26]
    I assess a sum of $580.40.

Travelling Expenses

27. [27]
    I have used 1824 kilometres at 50 cents per kilometre. I assess a sum of $912.

Pharmaceutical Expenses

28. [28]
    I assess a sum of $100.

Interest on travelling and pharmaceutical expenses

29. [29]
    This is assessed at five per cent of $1012 from 2 June 1998 to trial; an amount of $117.

Tax deductions from workers’ compensation

30. [30]
    Fox v. Wood $3160.80

Future medical/pharmaceutical/travelling etc expenses

31. [31]
    I assess an amount of $1000

Pain, suffering and loss of amenities

32. [32]
    The plaintiff has permanent loss of some of the use of his non-dominant upper limb. The impairment attributable to the incident the subject of this proceeding according to the orthopaedic specialists is 20 per cent.

33. [33]
    He is a 59 year old man. He has had two episodes of surgery, the first almost four months after first suffering the injury, the second some eight weeks later. During that four months he continued to work with difficulty and discomfort. He has had quite a lot of physiotherapy. He cannot lie on his right side without experiencing discomfort. If he holds his hand out for a length of time he has a feeling of weakness in his arm. His strength is limited above shoulder height. He can not bring his arm over to swim with a crawl. He cannot pick up his grandchildren comfortably. He cannot play golf. His ability to work in the garden is limited.

34. [34]
    I assess damages under this head in an amount of $30000.

Damages and interest total: $121594.20

35. [35]
    The amount due as a refund to Work Cover is $28067.16

36. [36]
    I give judgment for the plaintiff against the defendant.