Johnston v Council of the Shire of Noosa
[2003] QDC 28
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- Unreported Judgment
- Johnston v Council of the Shire of Noosa[2003] QDC 28
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Johnston v Council of the Shire of Noosa[2003] QDC 28
Johnston v Council of the Shire of Noosa[2003] QDC 28
DISTRICT COURT OF QUEENSLAND
CITATION: | Johnston & Ors v. Council of the Shire of Noosa [2003] QDC 028 |
PARTIES: | ROSEMARY LYNETTE JOHNSTON(First Plaintiff) And V.J. & R.L. JOHNSTON PTY LTD ACN 010 978 391(Second Plaintiff) And VERNON JAMES JOHNSTON(Third Plaintiff) And COUNCIL OF THE SHIRE OF NOOSA(Defendant) |
FILE NO/S: | D 344/99 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Maroochydore |
DELIVERED ON: | 7 April 2003 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 2-3 April 2003 |
JUDGE: | Judge J.M. Robertson |
ORDER: |
|
CATCHWORDS: | PERSONAL INJURIES – Quantum – plaintiff tripped on string line erected on footpath suffering injury – assessment of damages PERSONAL INJURIES – Quantum – second plaintiff company claims loss of profits and additional wages as a result of injury to first plaintiff caused by negligence of the defendant – whether the plaintiff’s injuries were responsible for the loss of profits – extent to which plaintiff’s injuries were responsible for additional wages Cases cited: Dailly v. Hamilton & Anor [2002] QDC 223 Cavanagh v. Palmwoods [2000] QDC 291 Hodgson v. Gold Coast City Council [2003] QDC 015 |
COUNSEL: | M. Grant-Taylor SC (for the Plaintiffs) R.J. Lynch (for the Defendant) |
SOLICITORS: | Boyce Garrick (for the Plaintiffs) King & Company (for the Defendant) |
- [1]The first plaintiff was born on the 16th May 1950. On the 24th September 1996 she slipped and fell over a string line erected around a site on the footpath outside the Cooroy RSL. She suffered injuries to her right wrist and elbow, her left knee and her back. The injuries to her back and knee were only transiently symptomatic, and settled soon after the accident. The injury to her elbow and wrist was far more serious. Liability is admitted in the sense that the first plaintiff is to receive 90% of damages assessed. The second plaintiff which is the company of the first plaintiff and her husband (the third plaintiff) is to receive 100% of its damages as assessed; and the third plaintiff’s claim has settled.
General damages
- [2]I am satisfied that the first plaintiff has suffered a very significant injury to her right elbow and wrist as a result of the accident. After the incident, she experienced severe pain. The General Practitioner she consulted initially took only one x-ray and missed the fracture to her elbow. Later in the week, he noticed the fracture to the head of the radius, but recommended only conservative treatment. She finally got to her own General Practitioner Dr Norman on the 24th October 1996 who referred her to Dr Ho, orthopaedic specialist. Throughout this period, she suffered significant pain and discomfort and required a great deal of assistance from her husband. Dr Ho gave her a number of choices and reasonably in my view, because of on-going pain, she chose operative treatment. On the 29th October 1996 Dr Ho performed an open reduction and Herbert screw fixation of the right radial head. She had a few days in hospital and her arm was placed in a sling. She commenced physiotherapy, and gradually her condition improved to the extent that one day she did some mowing on the spare block next to the business premises at Cooroy, and this physical activity stirred up her arm. She returned to Dr Ho after another visit to Dr Norman, and on the 11th November 1996 he operated again to remove the radial head of the elbow to reduce pain in the capitulum. Again she had initial improvement which was halted in December 1997 when she again suffered increased pain requiring plaster and local pain-killing injections for relief. In 1998, she experienced right wrist pain which was becoming worse. Dr Norman notes that clinically she was tender over the distal aspect of the wrist and on supination movements of the wrist. He again referred her to Dr Ho who considered she was suffering from distal radio-ulna joint or triangular fibro-cartilage complex pain and that she should consider a wrist arthroscopy. Dr Ho referred her to Dr Coleman who is an orthopaedic surgeon in Brisbane specialising in hand and upper limb surgery. On the 10th July 1998 he operated and noted marked synovitis to the radio-ulna joint, most likely due to instability and incongruity, which I find was more probable than not due to the original injury. He shortened the distal ulnar and fixed this with a five hole plate and screw. She wore a protective splint for four weeks. On the 13th August 1998 she was fitted with a rotation splint for her forearm which she used less and less as the wrist improved. Again, she gained considerable relief from the procedure, and significantly increased movement of her right forearm. She was again reviewed by Dr Coleman on the 18th January 2000 because of ongoing pain and discomfort in her wrist. On the 3rd February 2000 she was admitted to hospital and the plate was removed. Dr Coleman last saw her on the 7th September 2000 when she complained of some discomfort near the distal ulna at times, and at the radial head at the elbow, and occasional swelling in the elbow.
- [3]Since that time, her evidence is that the elbow and wrist both “play up” in cold weather. She has trouble opening heavy doors and must use her left hand. She has difficulty pushing a shopping trolley; and sometimes when her husband accidentally touches her arm while sleeping, it wakes her up. She says the wrist gives her more pain than her elbow. She takes brufen, but it makes her feel foggy in the head, and she also takes Panadiene Forte. Finally recently, she has had a cortisone injection in the wrist which gave her considerable relief, albeit temporarily.
- [4]There are a number of expert orthopaedic reports and some variation in opinion. Dr Coleman last saw her in September 2000. Based on her history then and his clinical findings then, he considers her condition to be stable. He expected a gradual resolution of her current discomfort over the next 12 months when he last reported on the 14th September 2000. Her evidence, which I accept, is that there has been no resolution at all; indeed she still complains of pain and discomfort which I have noted above. He opines that her disability is “less than 10% loss of function of the arm in the long term”. Not surprisingly, the defendant tendered Dr Coleman’s reports and he was called as a witness. The defendant referred the first plaintiff to Dr Gillett who is a specialist orthopaedic surgeon. He examined her on the 28th June 2002 and his report is Exhibit 10. In his opinion she has a permanent impairment equalling 22% of her upper limb and based on the American Medical Associated Guides to permanent injury, this equals 13% of the whole body.
- [5]The plaintiff was examined by Drs Day and Macneil at the behest of her own solicitors. Dr Day is a specialist orthopaedic surgeon and also senior lecturer in orthopaedics at the University of Queensland. He examined the plaintiff on the 5th April 2002 and his report is dated the 17th April 2002 and is Exhibit 9. In his opinion, she has a permanent 30% impairment of her upper limb which equals 18% of the whole body. Dr Macneil examined the plaintiff on the 4th January 2002 and his report is Exhibit 8. To him, she apparently made a complaint about a significant impairment to her shoulder. She did not make this complaint to any other doctor, or in her evidence. His opinion that she has a current whole person impairment of 22%, “due to residual symptoms and impairment of the right shoulder, elbow and wrist” must therefore be discounted. Also, he is not an orthopaedic specialist. Mr Lynch raised this with him at page 94 of the transcript. He agreed that he is a retired general surgeon but he said “I was practising orthopaedics for 20 years of my career…”. In my judgment in Dailly v. Hamilton & Anor [2002] QDC 223, I was critical of Dr Macneil’s evidence. Based on the evidence in that case I said (at para 11):
“Dr Macneil is not an orthopaedic surgeon and never has been. He is a general accident surgeon who has not operated on anyone since 1996. The last time he treated an orthopaedic injury was in 1973, in the context of working in a regional hospital which had no specialist orthopaedic cover.”
- [6]Of course, I do not base my assessment of Dr Macneil’s evidence here on the evidence about his expertise in another case, but I note this to emphasise (if that is needed) that in this day of highly specialised medicine, a non-specialist is prima facie at a disadvantage when in conflict with the evidence of a specialist.
- [7]Overall, I prefer the evidence of Drs Gillett and Day, and I find that the plaintiff has suffered a permanent disability of 15.5% of her body as a whole.
- [8]I am satisfied that she suffered pain and discomfort to an increased level post-operatively on each occasion.
- [9]I find that she has suffered significant impairment to the amenities of life. I accept her evidence that, prior to the accident she was a very physically active person; a “gym-junkie” as suggested by Mr Grant-Taylor. Prior to the accident, she was attending the local gym up to five times a week. She gained considerable social and health benefits as a result. Indeed, she was walking to the bank in Cooroy after a gym session when she tripped. I have taken into account her various minor health “niggles” referred to in her application to join the gym (Exhibit 20) but I accept her evidence that those were minor problems which did not interfere with her enjoyment of the exercise programme. After the final operation she returned to the gym because she missed it so much, and was putting on weight. She made a real effort to participate but found that she had to stand out of activities more often than not, and eventually she decided her enjoyment and benefits were so reduced because of her disability, that it was a waste of money to continue to pay gym fees. I find that her decision to discontinue the gym visits was reasonable in all the circumstances. I am satisfied that the loss of the opportunity to enjoy the gym is a very significant loss of amenity for this lady. She is also now almost totally prevented from enjoying social sporting activities which she often shared with her husband and which she greatly enjoyed. These activities included occasional 3 par golf, ten-pin bowling, and tennis. Her husband also mentioned camping which I accept was a family activity they both enjoyed but which is now not possible. He gave evidence that their valuable camping gear now is unused. They also enjoyed fishing together. The husband did not like going alone so the boat was sold. She is now restricted in her driving. She will not drive a manual car and finds if she drives continuously for more than 30 minutes, her arm becomes sore and she feels unsafe. Although she does still do and enjoy gardening, I am satisfied that her enjoyment has been reduced to some extent. It follows that I am satisfied that this lady has suffered a very significant diminution in her enjoyment of the amenities of life, which will continue into the future. Mr Lynch referred to assessments in Cavanagh v. Palmwoods [2000] QDC 291, and Hodgson v. Gold Coast City Council [2003] QDC 015. The case of Hodgson, a judgment of Judge Wilson delivered the 28th February 2003 is factually similar in relation to the nature of the injury and the permanent disability suffered. The plaintiff in that case was slightly older at the time of accident. As to loss of amenities, his Honour refers only to an inhibition of “her formerly active sports and leisure pursuits”; she was able to return to employment and did not require on-going domestic help. I assess damages under this head at $38,000 with interest on $20,000 at 2% for 6.52 years which is $2,608.
Future economic loss
- [10]The first plaintiff has continued to receive full wages from the second plaintiff and there is consequently no claim for past economic loss. There is considerable dispute about the future component. Mr Lynch submits that the appropriate course is to award a modest global sum based on her evidence that her future plans were to sell the business, have a rest and then pursue her interests in art and craft. Her evidence on this point is at pages 13-14 of the transcript. I accept that she intends to pursue her interests in this area as an income earning venture. In other words, she still plants to work, albeit in an area which gives her pleasure. Relevantly, she did commence a business of this kind in 2000 from which very modest returns were generated. It was not pursued. The business is on the market and has been for some months. There are interested parties but no definite sale yet. Obviously, she will continue to earn income from the business until it is sold. I accept that she has always worked, and I find that it is more probable than not that she will work into the future. I do not accept Mr Grant-Taylor’s submission that the evidence is such that I could determine an actual loss of $150 nett per week. He frankly acknowledged that he plucked that figure “out of the ether” to use his words. She is entitled to an award assessed on a global basis, and discounted for contingencies of $30,000 under this head, which includes superannuation.
Gratuitous services
- [11]As a result of her disability, the first plaintiff’s husband has had to perform many tasks previously undertaken by her. Her evidence, supported by him is really unchallenged, and the claims made (Exhibit 14) are reasonable in my view. I award her $12,207.70 for past services with interest at 5% on $12,207.70 over 6.52 years, which is $3,985.00. I am also satisfied that the future claim is modest and reasonable but should be discounted because of the reduced mowing since the sale of the vacant block and the building of the home pool. I also accept Mr Lynch’s submission that gardening is a shared pleasure, and always has been, although the third plaintiff does any heavy work, such as moving soil etc. which she would do herself in the past. I think the appropriate way to formulate an award under this head is to make a global award discounted for contingencies of $20,000.
Housekeeping expenses
- [12]Mr Lynch formally objects to a claim for future paid housekeeping expenses. It is not claimed in the first plaintiff’s statement of loss and damage, although past housekeeping expense are claimed. It seems that this was due to an inadvertence. Mr Lynch does not point to any particular prejudice to his client so I will grant leave to the first plaintiff to amend her statement of loss and damage accordingly. Prior to the accident the first plaintiff did all the house cleaning. I am satisfied that her disability prevents her from dusting and using a vacuum cleaner. I accept her evidence that from a time in late 1996 she has, on average, employed someone to clean the house at a cost of $35 per fortnight. Usually, it is her daughter, but if she is unavailable she has to employ professionals who cost more. She leaves it a bit longer than a fortnight then, so the average of $35 per fortnight is reasonable in my view. Mr Lynch argued that the receipts tendered as part of Exhibit 15 only cover the period November 1997 to April 2000 which is a figure of $1,800 which he has included in special damages in his schedule. I accept the first plaintiff’s evidence – it was never seriously challenged by reference to absent receipts and I will allow her $4,890 for past (past on Mr Grant-Taylor’s reasonable schedule in this regard) and interest at 5% on $4,890 for 6.52 years which is $1,594. For the future I will again allow a global sum of $10,000 calculated generally by reference to the evidence of past services and discounted.
Special damages
- [13]Once the past housekeeping component is taken out, there is agreement on specials. I will allow her $12,450 with interest at 5% on $3,233 (after deducting Medicare and MBF benefits) for 6.52 years which is $1,053.
- [14]The award is as follows:
| $ 38,000.00 |
| 2,608.00 |
| 30,000.00 |
| 12,207.70 |
| 3,985.00 |
| 20,000.00 |
| 4,890.00 |
| 1,594.00 |
| 10,000.00 |
| 12,450.00 |
(k)Interest | 1,053.00 |
136,790.70 | |
As agreed, 90% of damages assessed (rounded off) | $123,112.00 |
- [15]I give judgment for the first plaintiff against the defendant for $123,112.00.
The claim by the second plaintiff
- [16]The second plaintiff’s claim is advanced essentially on two bases. Firstly, it is submitted that as a direct result of the injury to the first plaintiff, the third plaintiff was unable to attend to his duties on behalf of the second plaintiff to the extent to which this was possible prior to the accident. It is argued that as a result, the second plaintiff suffered a decline in profitability over the three years subsequent to the accident, namely 1997, 1998 and 1999. The second aspect of the second plaintiff’s claim is for a percentage of additional wages said to have been necessarily paid by it in employing additional mechanics from the year 2000 until Christmas 2002. I will deal with the loss of profit claim first.
Claim for loss of profit
- [17]I accept the evidence of the third plaintiff that he is a key person in the business operated by the second plaintiff. He set up the business in the early 1980’s. It has remained throughout a small motor mechanical business with its core income generating activities being servicing and repairing motor vehicles and the supply of parts. I also accept that the first plaintiff played (and still plays) an important role in the business. I find that prior to her accident she carried out most of the administrative duties required for the business. These included basic financial administration, preparing invoices, banking, paying creditors, collecting debts, and looking after customers who were waiting to pick up cars. She also performed other tasks; such as collecting and delivering vehicles for customers, and on occasions she would actually assist the third plaintiff in his work by holding parts in place, or handing parts to him. She also cleaned and mowed around the business premises. I am satisfied that as a result of the accident and the four bouts of surgery subsequently, she was unable, for periods on average six weeks each time, to perform any of her tasks. For the balance of the time and now I am satisfied that she is able to perform the financial administration tasks, but is unable to collect cars, sweep floors, mow, or otherwise help the third plaintiff in the workshop. She is able to operate the business computer. I am satisfied that the third plaintiff has had to take over the task of collecting and delivering vehicles; and he now cannot rely on her help in the other areas in which she previously contributed. He gave evidence which I accept that he has been devastated by the loss of his wife’s support; but his loss in that regard seems to be more to do with his anguish because she is unable to share activities which they previously enjoyed together. He is clearly the life and soul of the business. There is no evidence that there has been particular customers who have gone elsewhere because of an inability to deal personally with the third plaintiff. There is no evidence that, apart from her valuable services mentioned above, the first plaintiff played any part in the generation of goodwill and the acquisition of customers. Obviously, people use the business because the third plaintiff is a good mechanic. Mr Grant-Taylor argues that the business must have suffered as a result of the distraction of the third plaintiff because of the injury to his wife; but he concedes that such loss has to be proved. At the end of the day, the second plaintiff’s case comes down to my assessment of the expert accounting evidence called by both parties.
The accounting evidence
- [18]The second plaintiff’s case is based particularly on the evidence of Mr Barraclough and his report – Exhibit 13. He calculates a nett loss of some $54,430 in the three years after the accident, based entirely on an analysis of the financial records of the company. Mr Murdoch for the defendant in Exhibit 12 suggests that upon the same analysis, he is unable to detect any loss to the company over the three years following the accident. Quite properly, Mr Barraclough does not attempt any analysis of factors other than the financial records, to determine what factors might have contributed to what he says is a loss over those three years, however he states at page 4 of his report:
“We are not in a position to determine whether or not the inability of Mrs Johnston to perform her duties has been the cause of the decrease in sales and net profit after tax, however, we are unaware of any additional external factors that would have been the cause of the loss. Therefore, it may be possible that the decrease in net profit after tax was a direct result of the injury sustained by Mrs Johnston and the subsequent disruption to the working hours of Mr Johnston. The disruption would have had a follow on effect to all areas of the business i.e. the mechanic was required to cover Mr & Mrs Johnston’s duties during their absence, thus not being able to give his undivided attention to the core activities of the business.”
- [19]Overall, on the balance of probabilities, I prefer the evidence of Mr Murdoch. Indeed, in Mr Barraclough’s report and his evidence he disputes very little of what Mr Murdoch says, with the important exception that he does not accept the method of adjustment used by Mr Murdoch. I agree with Mr Lynch that the logic of Mr Murdoch’s second report (Part of Exhibit 12) which deals with the differences between he and Mr Barraclough, is compelling. Schedule C to Exhibit 13 (Mr Barraclough’s report) sets out his calculation of growth based on the financial records for the years 1994–1996, i.e. the pre-accident years. Fundamental to Mr Barraclough’s opinion is that the records indicate that in the three years following the accident there was a decline in profitability, based on actual growth rate in those years, compared with actual growth rate in the earlier years. I agree with Mr Murdoch that the increase in profitability referred to in Mr Barraclough’s report from 1994-1996 is in fact largely caused by a decline in operating expenses of some $23,635. In paragraph 7 of his second report (part of Exhibit 12) Mr Murdoch has taken the trouble to analyse these operating expenses which are not set out in detail in Exhibit 13. I accept his evidence that this analysis indicates therefore that there was no growth between 1994 and 1996 and consequently the second plaintiff did not suffer any reduction in net profit in 1997, 1998 and 1999.
- [20]The second aspect of the second plaintiff’s claim relates to a loss sustained by employing extra labour initially in May 2000 when Peter Lewis was employed as a casual mechanic to assist in the business, and when he left in May 2002 Neal Lindenmeyer replaced him and is still so employed. For the three years prior to the accident and up until Christmas 2002, the business employed a full time permanent mechanic. Since the resignation of this person at the end of 2002, no-one has been employed to replace him. The second plaintiff’s claim is that the employment of the casual mechanics was brought about in part as a result of the need to cover for the time now spent by the third plaintiff looking after the first plaintiff and performing some of her pre-accident duties. A claim of 30% of the wages paid to these two men from May 2000 up to the present is maintained by the second plaintiff. The second plaintiff’s statement of loss and damage originally set this percentage at 50% (see Exhibit 22); and the reduction to 30% could not be explained by the third plaintiff. He accepted that the exercise was “too hard”. On the balance of probabilities, I cannot accept that any part of the wages paid to Lewis and Lindenmeyer is attributable to the admitted negligence of the defendant. In the four years from the date of the accident, until Mr Lewis was employed, the evidence is that no further specialist (i.e. motor mechanic) labour was hired by the second plaintiff, to cover for the absence of the third plaintiff from income generating work. He frankly told me that he knew nothing about computers, and left the financial side of the business to the first plaintiff as he had always done. I think it likely that the third plaintiff has simply increased his effort in the years since the accident, which is commendable and consistent with a plaintiff’s duty to mitigate loss, but does not provide evidence such as would enable me to link confidently the employment of Lewis with the negligence of the defendant. On the evidence, I think it more probable than not that Lewis was employed at a time when the third plaintiff’s own health suffered a downturn; and when the first plaintiff commenced her own business of card making from home. Further, the financial records indicate that in the period following the accident, the second plaintiff in fact paid increased wages to the first plaintiff notwithstanding the reduction in her duties on its behalf. Clearly, this leads to a reduction in gross profit before taking into account wages paid to persons associated with the company. The point Mr Lynch makes, which I think has some validity, is that the second plaintiff (like all plaintiffs) has a duty to mitigate its loss, which is not reflected in its decision to pay increased wages to the first plaintiff. Indeed, the records indicate that the second plaintiff paid the third plaintiff a lot less than the first plaintiff in the same period, despite the fact that as well as doing all his other pre-accident work, he’d taken over some of the first plaintiff’s duties. The second plaintiff’s claim on this basis must also fail.
- [21]After the injury to the first plaintiff, it is accepted by Mr Lynch that the employment of her daughter Deborah Nash and Tracey Godden for short periods in 1996 to carry out her duties was necessary, and the second plaintiff should be compensated for this. There is no dispute about the claims for stationery and the ride-on mower. The claim for an exchange vehicle is not pursued by Mr Grant-Taylor.
- [22]The second plaintiff is entitled to $1,324.65 and interest as agreed of $432.42.