DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff’s claim is for personal injuries which occurred in an accident on 4 April 1998 and resulted in the plaintiff suffering a grade 1 compound comminuted fracture of the left tibia and fibula.

2. [2]
   Both liability and quantum were in issue, but the former was the most controversial issue at trial. The issue of liability depends, in turn, upon issues of credit.

3. [3]
   It is common ground that, from time to time, the plaintiff was engaged by the defendant to perform work, including welding and labouring work, for which he was paid, in cash, on the basis of an hourly rate. The work was carried out at a construction site at the Pacific Highway near Yatala, the work site where the defendant was working as a subcontractor. The defendant would instruct the plaintiff as to when to attend the site and was in charge of the work which the plaintiff was required to undertake.

4. [4]
   As at the relevant date, a worker was defined under the WorkCover Queensland Act 1996 as an individual who worked under a contract of service and was a PAYE taxpayer.  The plaintiff was not a PAYE taxpayer and hence was not a worker as defined under that legislation at the relevant time.  Nevertheless, I accept the submission of counsel for the plaintiff that the defendant owed the plaintiff a duty of care, including a contractual duty to provide a safe system of work and a duty at law to take reasonable care for his safety.

5. [5]
   The plaintiff’s version of events is that the accident occurred at the work site in the morning when he was hit on the leg by a drilling rig. The circumstances leading up to that accident, on his version of events, were that while setting up for work, the plaintiff was asked by the defendant to pick something up and place it on a drilling rig which was hanging by its chain from the arm of an excavator under the control of the defendant. The plaintiff complied with that request, however the defendant began to operate the excavator so as to lift the drilling rig before the plaintiff had retreated, thereby resulting in the plaintiff’s leg being hit by the rig.

6. [6]
   If the accident occurred in that way, then I accept the plaintiff’s contention that the defendant breached his duty of care and is liable^[1].    The defendant did not contend to the contrary.  Rather, the defendant asserted that the accident occurred in a different way at a different location.

7. [7]
   The defendant’s version of events is that, on the morning in question, he drove to the plaintiff’s house to advise him that there would be no work to be carried out on the site that day by reason of it having been raining for several days previously. He claims that he drove up the plaintiff’s driveway towards his house before stopping the car, whereupon the plaintiff crawled out of his workshop injured. The plaintiff asked the defendant to take him to the hospital, but when they left the plaintiff explained that he did not wish his wife to be informed because he didn’t want her to worry. He allegedly told the defendant that a pipe had fallen on his leg. Obviously the defendant would not be liable if the accident occurred in that way.

8. [8]
   The issue of liability therefore falls to be decided, in this case, by whether or not I am satisfied, on the balance of probabilities, that the accident occurred in the way alleged by the plaintiff. The injuries are consistent with either version.

9. [9]
   One troubling matter concerning the plaintiff’s version of events, is the reference in the documentary evidence to other versions.

10. [10]
    The report of Dr Nutting states, in part, as follows:

“…However, it is curious that the history as given in the statement by Mr Collier seems to be repeated by two different individuals at the Logan Hospital A & E Department.  Firstly, the triage nurse at 7.50am and, subsequently, a person with different handwriting whose history of the injury is noted on the head of an Emergency Department record and observation sheet of the same date.  These are obviously different people, but were given the same history.  Further to this, the two medical certificates provided to WorkCover by Dr Poon suggest that metal pipes falling on Mr Micallef’s leg were responsible for the compound fracture.  If this indeed was not the mode of injury, I find it a little difficult to understand why Mr Micallef would accept the certificates, since obviously he should have had a copy of them.”

11. [11]
    The above passage is, of course, simply Dr Nutting’s observations on what was recorded on certain documents. The defendant did not call the authors of those documents. Dr Nutting’s concern as to why the plaintiff would accept a medical certificate which wrongly recorded the mode of injury is perhaps explained by the fact that the plaintiff cannot read.

12. [12]
    The report of Dr Johnstone of 11 December 1998 records that the plaintiff informed him that “on the 4/4/98, whilst at work, a metal pipe fell onto his left leg”.  This is not consistent with either version of events, but contains aspects of each.  If the accident happened at work it is consistent with the plaintiff’s version whilst the description of “a metal pipe fell onto his left leg” is consistent with part of the defendant’s version.  In answering questions as to which of the “two scenarios” was a more likely cause of the type of fracture which occurred, Dr Johnstone recounted the ‘pipe falling on the leg’ scenario as one in which a pipe used on the drilling rig, as part of the mechanism of the drilling, fell across the plaintiff’s leg.

13. [13]
    As Counsel for the plaintiff submitted, it is at least possible that the doctor had been influenced to record this hybrid version as a result of trying to reconcile the plaintiff’s version with what he had seen from other sources of information. While, at trial, he said, in relation to the source of the information, that “I believe that it would have been that he had personally told me”, it is understandable, given the passage of more than five years since his first examination, that he appeared less than adamant and phrased his answer in terms of what “would have been” the position. 

14. [14]
    The plaintiff said that, whilst on the journey to the hospital, the defendant (who did not carry workers’ compensation insurance) told him not to worry and that he would take care of his family and not to say that the accident, happened on the job. When asked whether he had ever told anybody that the accident happened by means of pipes falling onto him, the plaintiff initially responded that he didn’t recall what he said, although he knew what happened with the accident, but added, “If I say – if I say – I tell them he want me to say – he want me to say”.  In cross-examination, he repeated that he did not remember giving a different version of events but that he “may” or “probably” said the defendant wanted him to say those things.  The defendant admitted to having offered help and, in particular, having offered some money to the plaintiff’s wife, but denied that the offer was made in the truck on the way to the hospital or that he instructed the plaintiff not to tell anyone how the accident actually occurred.

15. [15]
    The plaintiff’s version is consistent with that which he gave in his application for workers compensation in August 1998 and in the statement he subsequently provided to WorkCover Queensland in September 1998.

16. [16]
    In support of his version of events, the plaintiff called his wife and his son, who corroborated aspects of his version of events. The evidence of family members in such circumstances must, of course, be carefully scrutinised. Their evidence was not entirely satisfactory. As the defendant pointed out, the plaintiff’s wife’s statement that the husband phoned her from the hospital at 6am is unreliable given the other evidence. Further, her evidence that, at the time of her husband’s injury, there were two cars at her home, a “Jackaroo” and her husband’s “old car” seems to be at odds with her other evidence (and the evidence of the plaintiff and his son) that the plaintiff had left for work that morning in his “old Holden”.  The plaintiff’s son’s evidence that he did not speak to the defendant about what had happened on the accident site until the defendant commenced to drive him back to the accident site so as to collect his father’s car and in particular, that when he first saw the defendant at the hospital they just spoke about “cars and general stuff” seems unlikely.  Nevertheless, as the plaintiff’s counsel pointed out, the evidence of the plaintiff’s family members did not give the impression of collusion.

17. [17]
    The defendant’s version of events has its own difficulties. On his evidence, he drove to the plaintiff’s house at around 6.30am in order to prevent him from leaving for work, but there was no reason for him to have expected that the plaintiff would not already have left for the site by that time. Further, the defendant said that the drive to the hospital took only 20 or 25 minutes and that having got there, he rang the plaintiff’s son around 7.15am, 7.30am or maybe a little later. Faced with the suggestion that hospitalisation did not occur until a later time, the defendant began to revise his previous evidence as to when he may have arrived at the site.

18. [18]
    Further, on the defendant’s version of events, the plaintiff had suffered a significant injury which had obviously caused him pain and led him to physically drag himself out of the shed, presumably in search of assistance. That the injury was significant would have been apparent, however the defendant did not attempt to call out or otherwise inform or seek the assistance of anyone in the house in respect of the injury or the proposal to take the plaintiff to hospital. Whilst, on the defendant’s version, the plaintiff later indicated that he did not want his wife to know, that does not explain why the defendant would not have immediately raised the alarm upon arriving at the house and observing the plaintiff’s predicament.

19. [19]
    The issues of credit in this case have not been easy to resolve.  Having given a deal of consideration to the evidence, and the way in which it was given by the witnesses, I am prepared to find, on the balance of probabilities, that the accident occurred in the way the plaintiff alleges.  It might be that the plaintiff has given different versions on other occasions but I am satisfied, on the balance of probabilities, that any such differences were due to the instructions and promises of assistance made by the defendant. 

20. [20]
    Accordingly, I find in favour of the plaintiff on the issue of liability.

21. [21]
    The issue of quantum was not as controversial. Whilst no component of the quantum was the subject of agreement, the defendant did not seek to call any medical evidence nor did he make any submissions with respect to the assessment of quantum.

22. [22]
    The plaintiff was born on 3 December 1947. He was 50 years of age when injured and is presently 56. As has already been noted, he suffered a grade 1 compound comminuted fracture of his left tibia and fibula. This was treated at Sunnybank Hospital by Dr Poon. He underwent no operative repair and was treated with plaster immobilisation for four months until the fracture was healed. He was required to utilise crutches for nearly a year and had a period of some months where he was required to wear a false boot, which caused him some embarrassment. His rehabilitation was assisted with physiotherapy.

23. [23]
    The plaintiff was absent from work for 15 months, which had economic consequences which required his wife to enter the workforce and his children to be removed from private schooling. The plaintiff impressed me as a person likely to take pride in his ability to work and to find employment to provide for his family and his inability to work for some 15 months was accompanied with a degree of anxiety.

24. [24]
    The plaintiff’s injuries have left him with an external rotation deformity of the left lower leg and decreased plantar flexion power and therefore an inability to single leg-heel raise. He also reported a tender tibia, the reasons for which were not clear to Dr Johnstone. Dr Johnstone also reported decreased calf musculature and a post-injury DVT.

25. [25]
    Each of Dr Johnston and Dr Nutting assessed the rotational deformity as a 12% whole of person impairment. Dr Nutting assessed the degree of impairment for the weakness and decreased function in the muscles and ankle and subtalar function as 5%, whereas Dr Johnstone assessed that at 7%, although very little turns upon that difference. The disability, expressed as a whole of person percentage, is 17-19%.

26. [26]
    Whilst the plaintiff has returned to regular fulltime employment his injury continues to cause him some difficulty at work and at home.

27. [27]
    I assess general damages in the sum of $35,000 and allow interest at 2% per annum on half that amount for 6 years, amounting to $2,100.

28. [28]
    Special damages consist of a refund to the Logan Hospital of $611, a refund to the Health Insurance Commission of $592.50, the cost of physiotherapy in the amount of $1,200, being 1.5 sessions for 20 weeks at a cost of $40 each session, and $200 for pain killers. Interest on the non-refundable amount as $420.

29. [29]
    The calculation of past economic loss for the 15 months that the plaintiff was unable to work is not a precise exercise. Prior to the accident the plaintiff had lost his employment with a long-time employer from whom he had received an average of $645 nett per week over the three financial years prior to his injury. Subsequently, he had found some employment with another company and had also been introduced to Mr Collier with whom he was undertaking work. I accept the submission by counsel for the plaintiff that his client is clearly a man who was capable of finding work, equally as remunerative as his work with his previous employer and that, but for his injury, it is probable that he would have found employment at an equivalent level of earnings within a reasonably short period. As counsel for the plaintiff concedes however, a discount should be applied, having regard to the loss of his long-term employment and the prospect that he may have either had periods of unemployment or reduced income during the 15-month period irrespective of his injury. Counsel for the plaintiff submits that past economic loss should be calculated by applying the nett weekly amount of $645 of the plaintiff’s previous employment, to the 15-month period, less a discount of 20%. This produces a loss of $33,540. Interest at 5% over five years adds $8,385. That is an appropriate assessment.

30. [30]
    The plaintiff, after recovering from his injuries, obtained employment with another engineering firm which is no less remunerative than that which he enjoyed prior to his injury. His income tax return for the year ended 30 June 2003 discloses a nett income of $38,619 from his primary employer. He also earned a more modest sum from a labour hire company. Nevertheless, some award for future economic loss is appropriate. His ongoing disability presents some difficulty to him in the task of his employment, e.g. when climbing ladders. Asked whether the plaintiff would be able to continue in his work through to normal retirement age of 65, Dr Nutting was of the opinion that it depends on the circumstances and whether he can “pick and choose” so as to avoid a lot of climbing or very unyielding surfaces(as opposed to being based in a workshop).  Dr Johnstone expressed the opinion that the injury had recovered to a point where the plaintiff would be able to undertake most of his previous duties although he would have slight difficulty climbing ladders.  Asked whether, as he ages, the plaintiff’s difficulty would become more pronounced,      Dr Johnstone said: “If he was to get some more weakness in his calf muscle with time as part of the natural weakening of one’s muscles with age, otherwise I doubt that it is going to change significantly and he probably could manage through to retirement.”

31. [31]
    Although Dr Johnstone acknowledged that the plaintiff’s work through to retirement depended, to some degree, on him maintaining physical fitness and that his prospects of working to retirement might be affected if that becomes increasingly difficult for him to achieve, he added that it would not necessarily be impossible and that, even in those circumstances, the plaintiff might just have to avoid certain activities such as climbing ladders or climbing up on scaffolding but that he could certainly continue welding in a workplace environment.

32. [32]
    It seems to me that the plaintiff’s injuries put him at some modest risk with respect to his capacity to earn income in the future. It may also put him at some increased risk on the open labour market if he was to lose his current employment. In the circumstances I am prepared to make a global award of $25,000.

33. [33]
    Superannuation, calculated at 6% on the amounts allowed for past and future economic loss adds $3,512.40.

34. [34]
    The plaintiff received gratuitous care during the period of his recovery. He had assistance from his son around the home for most days over a period of six months, for about 3-4 hours on each occasion. An appropriate award for that is $4,680 (i.e. 15 hours per week x 26 weeks x $12 per hour). The plaintiff’s wife assisted him with his personal needs for a period of about four months for which an appropriate award is $1,848 (i.e. 7 hours per week x 22 weeks x $12 per hour). Interest calculated at the rate of 5% on the aggregate is $326.40.

35. [35]
    The plaintiff still requires some assistance from time to time. Counsel for the plaintiff submits for a “nominal” award of $500 for future assistance. That appears reasonable.

36. [36]
    The plaintiff will incur occasional future expense on pain killers for which I will make an allowance of $200.

37. [37]
    Summation of damages:

38. [38]
    I give judgment for the plaintiff in the sum of $118,115.30.