Pethtel v Thor Plastics Pty Ltd
[2004] QDC 462
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Pethtel v Thor Plastics Pty Ltd[2004] QDC 462
- Add to List
Pethtel v Thor Plastics Pty Ltd[2004] QDC 462
Pethtel v Thor Plastics Pty Ltd[2004] QDC 462
DISTRICT COURT OF QUEENSLAND
CITATION: | Pethtel v Thor Plastics Pty Ltd [2004] QDC 462 |
PARTIES: | CLYDE MALCOLM PETHTEL Plaintiff v THOR PLASTICS PTY LTD Defendant |
FILE NO/S: | D1822/01 |
DIVISION: |
|
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 12 November 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20, 21 July 2004 |
JUDGE: | McGill DCJ |
ORDER: | Judgment that the defendant pay the plaintiff $92,459. |
CATCHWORDS: | DAMAGES – Personal injuries – hand – 10 percent impairment – pain – psychological effect. |
COUNSEL: | J W Lee for the plaintiff R C Morton for the defendant |
SOLICITORS: | Goodfellow & Scott solicitors for the plaintiff Moray and Allen solicitors for the defendant. |
- [1]The plaintiff claims damages for personal injury suffered by him in the course of his employment on 18 April 1998, when his left hand became caught in a piece of machinery within a pipe extruder production line. The machinery was like two conveyor belts facing each other, and the whole of the plaintiff’s left hand up to his wrist was trapped between them and crushed.[1] Liability was not disputed, and it is necessary only to assess the plaintiff’s damages. Essentially the issue in relation to damages was as to economic loss. There was agreement on special damages, but general damages are also in issue, so I need to say something about the nature and consequences of the plaintiff’s injury.
Medical evidence
- [2]Following the accident the plaintiff went to the Wesley Emergency Centre where he was seen by Dr Egarr who found that the plaintiff had suffered a three centimetre split laceration between the thumb and the index finger, and alongside the index finger, from which muscle was bulging. There were abrasions and bruising over the dorsum of the hand, and an x-ray revealed a fracture of the end of the ulnar bone, and possible flake fracture of the small bones of the hand. He must have been suffering considerable pain, because he was given morphine, and other emergency medication, and admitted to hospital where he was reviewed by a specialist in hand surgery, Dr Carney.
- [3]Dr Carney saw him the same day, and subsequently operated on him, closing the wound and immobilising the hand in plaster: Exhibit 6. He was in hospital for about three days: Exhibit 10. In May 1998 Dr Carney thought the plaintiff might be able to resume work in a light duties capacity (Exhibit 2), but this was not satisfactory as his hand swelled significantly, and he had to stay off work again for a time: Exhibit 3. Some time after discharge he attended the Belmont Hand Therapy Unit, receiving some rehabilitation: Exhibit 3. In a letter to WorkCover on 19 June 1998 Dr Carney said that the plaintiff had suffered very severe damage to the intrinsic muscles of the hand, and noted that his grip strength was not sufficient to allow him to go back to full duties: Exhibit 4. By 26 August 1998 he was working eight hours per day on light duties, and his hand was improving although by no means normal: Exhibit 5.
- [4]On 3 November 2000 Dr Carney reported that the plaintiff had made a protracted recovery and the hand was still not pain-free, although the plaintiff was able to make a full fist, but with pain in the wrist joint and in the small joints of the fingers: Exhibit 6. His grip power was diminished by ten kilograms compared with the right (dominant) hand. The pain was severe in cold weather. Dr Carney said that this was consistent with an injury of that kind, which he said damages a substantial amount of soft tissue through the entire contents of the hand from wrist to fingers. The report indicates that Dr Carney was arranging for some investigations into whether there had been some loss of blood flow in the hand but I do not know whether this was done and if so what the outcome was.
- [5]The plaintiff was examined by Dr Coleman, specialist in hand surgery, for the purposes of a report to WorkCover dated 7 February 2001: Exhibit 10. At that stage the plaintiff was complaining about some swelling in the hand and some pain, with the symptoms worse in cold weather. His wrist was stiffer, and it was difficult to sleep. He had completed a rehabilitation treatment but was doing exercises. He was not taking analgesics. After he returned to work he was not able to do all his previous activities, especially lifting: Exhibit 10.
- [6]On examination at that stage there was no swelling, there was a scar which had healed well, and there was good movement in the hand although there was some indication of a condition not directly related to the injury, apparently congenital, Dupuytren’s contracture. Sensation and circulation were said to be normal. There was some reduction in grip strength, and some discomfort on gripping, and some loss of movement in the wrist. Dr Coleman assessed the disability at ten percent loss of function of the hand, presumably in accordance with the AMA tables. He thought the condition was stable and not requiring further surgery or rehabilitation. He thought there was no medical restriction on his returning to work although he expected some discomfort with lifting, and he would have problems with an activity which required prolonged gripping with his hand. He did not think he could work as a meatworker because of cold intolerance.
- [7]The plaintiff was seen on 7 June 2001 by Dr Tuffley, an orthopaedic surgeon, for the purposes of a medical report requested by the defendant’s solicitors: Exhibit 11. Dr Tuffley said that the plaintiff’s return to work was made easier by the fact that he was then a supervisor and was able to control what jobs he undertook. The plaintiff complained of global aching in the left wrist tending to be worse in cold or damp weather. He was treating the pain with a heat-wheat glove rather than pain medication at that stage. On examination the result was similar to that found by Dr Coleman although he noted that there was some loss of an aspect of grip in his left hand because of some loss of flexion in a joint in the left thumb. Apart from the effects of the Dupuytren’s contracture there was generally close to full motion in the joints of the hand, but some significant loss of motion in the wrist. There was minor wasting at the intrinsic muscles of the hand, and minor wasting (half centimetre) in the left forearm.
- [8]Dr Tuffley noted that there was no evidence of amplification or exaggeration of symptoms. He thought that the Dupuytren’s contracture had been accelerated as a result of the trauma (p. 56), and if it progressed further may require surgical treatment. Dr Tuffley thought that if surgery was required it was reasonable to attribute a quarter of the cost of the surgery to the injury. That could be seen as representing a chance of avoiding surgery which the plaintiff has lost as a result of some aggravation or acceleration of the condition because of the injury. The cost of surgery would be in the order of $2,500. There was some risk of nerve damage associated with the surgery, but the surgery had not been made more difficult because of the injury to the hand.[2] Dr Tuffley assessed the impairment in function of the left arm at eight percent in accordance with AMA tables, the equivalent of five percent impairment of the whole person. He did not expect any deterioration (or improvement) in the hand, in terms of function; there could be some increased pain if there was arthritic degeneration in the hand as a consequence of the fractures.[3]
- [9]Dr Tuffley also thought that the plaintiff would be able to continue his work in the field in which he was qualified by training experience to a normal retirement age, except for work in meatworks. It does appear that Dr Tuffley’s assessment that the plaintiff had no decreased capacity to undertake the type of employment he was performing prior to the accident was based on a fairly superficial assessment, that being the fact that he went back to his previous job and was able to cope to some extent because he was a supervisor: p. 52. But that plainly did not mean that his capacity to undertake that type of employment had not decreased. I do not accept this part of his evidence.
- [10]Dr Tuffley said in oral evidence that the contracture would have to have worsened before he would consider surgery, but may have done so: p. 48. On cross-examination Dr Tuffley said that he accepted that the hand was not as it was before the accident, but in his opinion the plaintiff had reasonable function in his hand and he was capable of some form of employment: p. 51. Dr Tuffley said that the plaintiff seemed a fairly genuine fellow to him, and that he did not seem to be depressed or anxious: p. 55. He said that there was no damage to any of the major vessels in the hand, but there could be a subtle problem with circulation in the hand, and that could lead to cramping, which would be a reasonable symptom with this injury: p. 58. He would expect more pain and discomfort from the use of the hand, and some loss of ability to grip things or pick things up: p. 59.
- [11]Apart from speaking about the effect on the plaintiff in terms of impairment, Dr Tuffley also spoke about disability. It is not clear that this is an area where he has any particular expertise, and in the light of the cross-examination it is clear that his analysis which led to the opinion stated by him was somewhat superficial. The plaintiff’s evidence and that of his wife, if accepted, show considerable loss of self esteem and some loss of independence, and loss of status. That evidence was not challenged in cross-examination, and I accept it. To the extent that Dr Tuffley’s opinion was based on a scepticism about accepting at face value everything the plaintiff said, it is unjustified by the evidence before me. In all the circumstances I reject that part of Dr Tuffley’s report under the heading “disability”.
- [12]The plaintiff saw an occupational therapist, Ms Bentley, for the purposes of a report provided to the solicitors for the plaintiff, dated 25 February 2003: Exhibit 8. She measured the range of movement in a number of joints of the wrist and left hand. The results suggested significant diminution in movement in a number of aspects of the left wrist, and some loss of movement in a number of joints in the left hand, rather more loss of movement than that suggested by the various doctors who examined the plaintiff. I suspect this may be because of a more precise measuring process in her case, and because the doctors did not place much significance on some of the loss of movement which is present. There was also a measurement of the muscles in the forearms, which produced a difference of two and a half centimetres, a greater difference than the .5cm detected in July 2002 by Dr Tuffley. There had been a half centimetre increase in the diameter of the right forearm. One of the plaintiff’s complaints to Ms Bentley was that he was less fit, having gained some weight and lost some muscle tone since the accident. The measurement of grip strength showed a level above the 90th percentile for of the right hand, but about the 60th percentile for the left hand, suggesting some loss of grip strength in that hand.
- [13]Ms Bentley concluded that the plaintiff was no longer capable of performing safely many of the types of work he had performed earlier in his working career. He was coping with the work he was doing at the time when she saw him, and she thought he would be capable of continuing in that position until retirement (in fact the company closed down and he was retrenched). She expressed the further opinion that he could have difficulty obtaining work with a new employer because of his hand injury and his limited education, and his age and the current economic climate would be likely further to limit his career opportunities. She also suggested the use of a steering wheel spinner knob because of some problems he complained of in driving for long distances, which tended to cause his left hand to cramp up.[4]
- [14]The plaintiff was seen by Dr Pentis, an orthopaedic surgeon, on 18 October 2003 for the purposes of a report to the plaintiff’s solicitors: Exhibit 9. The plaintiff at that stage had some pain and tenderness in the knuckles, and a limited range of movement in the hand, with difficulty using full strength. He had stopped playing golf as a result of the injury,[5] and he had some difficulty with gardening and home handyman work. He took analgesics as required. On examination there was a slightly decreased range of movement of the fingers and flexion deformity and some tenderness on extending the joints of the fingers, slightly decreased power but sensation was normal. There was also a decreased range of movement in the wrist, and a scar on the hand. Dr Pentis also identified Dupuytren’s contracture in the left hand, and more mildly in the right hand. X-rays showed a number of fractures in the hand.
- [15]Dr Pentis thought that the plaintiff had been left with some weakness and decreased range of movement which would affect strenuous, repetitive use of the left hand and wrist, and with the prospect of developing arthritis in the future. He would not require surgery unless the Dupuytren’s contracture progressed to the point where operative release was necessary. Dr Pentis thought the plaintiff was suitable only for light manual work. He assessed the incapacity at 10 to 15 percent loss of efficient function of the left arm. He did not expect the condition either to get worse or to get better: p.45.
Employment history
- [16]The plaintiff had a difficult childhood. His mother was an Australian war bride of an American serviceman, and he was born on a US army base in California: p. 6. His father drank a lot and left his mother after she was diagnosed with cancer, and in 1963 she and her children came to Australia: p. 7. Fortunately she recovered. They lived initially in Kingaroy where the plaintiff left school during Year 9, having lost a year earlier as a result of the move from the United States, which left him about two years older than the others in his class: p. 8. He left school when he obtained a job as a storeman in an electrical store in Kingaroy, but he lost that job when he turned 18, and came to Brisbane to find work: p. 9. He then worked installing products for Premier Blinds, in a meatworks, and on a car assembly line, where he eventually became a leading hand before leaving to work as a car detailer in an attempt to break into the retail car business: p. 10. Eventually he was employed as a salesman, which continued for some years. Eventually he left so as to obtain a more regular income level: p. 12. He obtained work in a plastic pipe factory, initially as a line operator, although he hoped to work his way up in time to being a dye fitter: p. 13. That required some degree of practical experience with the equipment used to produce pipes, and according to the plaintiff was a position which was in some demand: p. 15.[6] He eventually left that employment in September 1995 and went to do similar work with the defendant, which had a similar business although operating on a smaller scale.[7] He remained with the defendant until after the accident on 18 April 1998.
- [17]After the accident the plaintiff went back to work eventually, but initially in a different position, on light duties working in the moulding area: p. 25. He was in time put in charge of the moulders, but eventually the company was taken over and the factory closed down, and he was made redundant on 21 July 2000: p. 25. His next job did not begin until 28 February 2001, when he started work with a plywood manufacturer, but he left there in November 2001 to work at another pipe factory, where he was doing similar work to the work he had been doing with the defendant: p. 28. That continued until February 2004, when that factory was also closed down, and the company moved its production to Melbourne: p. 26. He was offered the opportunity to work for the company in Melbourne, but declined, for family reasons and because he was concerned that it would be too cold: p. 26. Cold weather aggravates the pain in his hand.
- [18]He did not obtain other employment until early June 2004, when he started work as a labourer with a company that makes disposable takeaway containers: p. 26. He had previously attempted work as a labourer with a concrete manufacturer, but was unable to cope because of difficulties with his hand, and some back problems.[8] He did not want to go back to selling cars, and indeed there is no evidence that he would be able to make more money doing that than he is at the moment. In addition he found that work very stressful. The work that he is doing now seems to be less skilled than the work that he had been doing for the defendant (p. 22), and there does not seem to be any prospect of advancement: p. 33.
Assessment
- [19]The plaintiff was born on 31 January 1951 (p. 30) and he is now 53; he was 47 at the date of injury. The actual incident would have been very painful, and the plaintiff suffered a relatively long and fairly painful period of recovery. He continues to have a fair bit of pain in the hand, with an aching sensation more or less all the time, worse with use, and cramping from time to time: p. 19. This interferes with sleep, to the point where he is taking regularly relatively large doses of Panadol night and morning: p. 23, p. 31. He also uses a wheat heat bag: p. 20. He feels that there has been some loss of strength in the hand, particular in the wrist (p. 18) and he cannot cope with lifting any significant weight with the left hand, at least by an ordinary lifting process: p. 17, p. 37. He feels that he is more clumsy than he used to be: p. 21. I accept that there has been a loss of function of ten percent of the hand, on the basis of the evidence of Dr Coleman, the hand specialist.
- [20]There was a time when he was just recovering from injury when he did have problems looking after himself, dressing and so on, because at that stage there was little he could do with the hand (p. 37); but now it seems to me that he can essentially look after himself, and do most household tasks, although he has problems with anything which makes any real demands on the left hand. To some extent he can adjust the way he does things to accommodate this (p. 37), but he has largely responded by not doing things around the house to the same extent: p. 19.
- [21]The injury has also had a significant adverse effect on his personality and outlook; he was previously a cheerful positive person who tried to get ahead in various jobs as best he could. After the accident he became very different, becoming very frustrated with things and despondent and bad tempered, to the point where he and his wife separated for a period of some months: p. 37. I accept that the plaintiff was honest and straightforward in his evidence, and indeed the contrary was not asserted. I am satisfied that he was not exaggerating his complaints. I also accept the evidence of his wife, which supported his evidence, and testified in particular to the changes in his attitude and personality as a result of the accident. I prefer to act on this evidence rather than the fairly superficial assessments of these matters by Dr Tuffley. I think the psychological component of the injury is of some significance in this case. In all the circumstances, I assess damages for pain and suffering and loss of amenities in the sum of $27,000, of which I apportion $12,000 to the past. That will not carry interest.[9]
Economic loss
- [22]It was not disputed that the plaintiff was entitled to recover the amount paid by way of net WorkCover benefits, which comes to $7,639.98: Exhibit 13. It was submitted for the defendant that the plaintiff had suffered no other past economic loss. The plaintiff went back to work with the defendant, and remained with that company until it ceased operation and he was made redundant in July 2001. Clearly that position was not lost as a result of his injury. It was submitted on behalf of the plaintiff however that economic loss should be calculated by reference to the plaintiff’s having continued employment in the extrusion industry at the same level, and as from January 2003 as a production manager.
- [23]It was admitted that a production manager in that industry would earn $42,000 per year net: p. 63. It is however clear that the plaintiff would not have been working as a production manager for the defendant in 2003, even if he had not been injured, and it is by no means clear that the plaintiff would have been doing that work for anyone had he not been injured. There was no evidence about whether a person would be expected to have any particular formal qualifications in order to hold a position as production manager, or even as to what level of experience a person might be expected to have. The plaintiff had some degree of experience in the industry, but I do not know whether or not that would have been enough.
- [24]The crucial deficiency in the plaintiff’s case, so far as the plaintiff’s argument is concerned, is that there is no evidence that the plaintiff ever tried to obtain other employment in the plastic pipe industry, similar to the employment he previously held with the defendant, which he was unable to obtain or at least did not obtain, where the failure to obtain that employment was or might have been attributable to the injury to his hand. It is of some significance that he did at one stage after the injury obtain other employment in the same industry, but again that employment was lost when the factory closed. If two such factories had closed during the relevant period in Brisbane it is reasonable to assume that such employment is going to be more difficult to come by than it otherwise would have been, even for a person who is without impairment to the left hand.
- [25]It would not have been to the point to call evidence to show that there are still people working as production managers in this industry in Brisbane, so that at least in theory it is still possible to obtain such a position in Brisbane. The crucial omission from the evidence is evidence which would have otherwise come from the plaintiff himself. For that reason I am not prepared to allow the plaintiff to reopen his case for the purpose of leading other evidence as to the existence of positions of production manager in Brisbane. I would presume that there are some such positions, but I am not prepared to assume that the plaintiff has as a result of his injury lost any real chance of obtaining such a position, either in January 2003 or at any other time. It may be that, had the defendant’s business not closed, he would have obtained such a position with the defendant at some time. But that chance was lost not because of the injury but because the defendant’s business closed.
- [26]On the other hand, I do not accept the defendant’s argument that the only past economic loss would be in respect of that period when the plaintiff was receiving WorkCover benefits. It took the plaintiff a long time to obtain other employment after he was made redundant in July 2001, and, given the medical evidence as to the limitation in his ability to do physical work, and in the light of Ms Bentley’s evidence that the plaintiff could have difficulty obtaining work with a new employer because of his hand injury, which was not challenged in cross-examination and which I accept, I think it is reasonable to conclude that the plaintiff’s difficulty of that nature was manifest during that period, and contributed to the fact that he took as long as he did to obtain alternative employment.
- [27]I think it likely, even in the absence of direct evidence of the plaintiff, that he was trying to obtain employment during this period. At the time of the loss of this employment he was still the principal breadwinner for himself, his wife and a number of children. Bearing in mind the psychological consequences of his injuries, it is probable that he was not as vigorous in seeking alternative employment as he would have been if he had not suffered the injury, and that may well have contributed to his difficulties, apart from any reluctance on the part of an employer in taking on, essentially for unskilled manual work, someone who had a disability in the left hand. The plaintiff’s skills and experience in the plastic pipe industry would I suspect not be transferable, and it does appear that his work in the plywood factory, and his current work, were obtained essentially as unskilled manual work. I think it is obvious that a person with the plaintiff’s injury, and suffering the psychological consequences of that injury he suffers, is going to have a good deal more difficulty in obtaining such work than would be the case if he were not injured. This is notwithstanding that a person without the injury would probably have some difficulty anyway in getting work of that nature as he became older.
- [28]The plaintiff’s 1998 tax assessment shows average net earnings per week for that year of $608.[10] In the following two financial years, while he was still working for the defendant, his income actually increased, and it is not suggested that he suffered any economic loss until he left the defendant’s employment. During the 1999-2000 financial year, the last full year of employment with the defendant, his net weekly income was $657.[11] He was then unemployed until 28 February 2001, a period of almost 32 weeks. It would probably have taken the plaintiff some time to obtain alternative employment anyway, and he probably would have lost some income anyway because of the likely loss of untransferable skills. When he obtained employment, it was at a much lower rate of earning, until he transferred to another company in the pipe manufacturing area, where his net earnings came to be nearly as high as they had been before he was made redundant by the defendant.
- [29]While working for the plywood company the plaintiff was receiving an ordinary wage of $376.60 net per week, but must have been paid some overtime or some other payments as well, because his group certificate for the period from February to June 2001 shows an average net weekly payment of $420.[12] In the period in the following financial year there was an average net per week of $540[13] but it is not clear whether this includes any lump sums paid on termination of employment. There are no amounts shown in the document specifically as lump sum payments on termination of employment.
- [30]The plaintiff then worked for another company in the plastic pipe industry, earning nearly as much as he was earning with the defendant. His group certificate for the period 29 November 2001 to 30 June 2002 shows gross payment of $21,279 with tax of $4,737 was withheld. That shows a prima facie net earnings per week during that period of 30 weeks of $551.40. He was in that employment for the whole of the following financial year, for which he received average net earnings per week of $616.[14] Although it is still less than he was earning with the defendant at the time he left, there is in my opinion no reason to think that his earnings would have been better at this time had it not been for his injury. It seems to me that this loss of income is entirely attributable to the fact that he was working for that company rather than the defendant, that is, to the closure of the defendant.
- [31]That factory however also closed down and the plaintiff was again made redundant on 6 February 2004: p. 28. There was then a further period of unemployment which lasted effectively until he started work with his current employer on 30 May 2004. There is in this case evidence that he had previously obtained other employment, on 24 March, as an assistant labourer, but he had to leave that work two days later because he could not cope with it.[15] That was in part because of the problem with his hand, and it may be that apart from the injury he would have been able to do that work. The letter refers to a net wage of $432, which I assume was per week rather than just for the two days he was working. Accordingly there was a period of 16 weeks when he was essentially unemployed and before he obtained other work. It is therefore very likely that but for the injury to his hand he would have obtained other employment sooner, the period of unemployment would have been shorter than 16 weeks.
- [32]The employment with the current employer generates a net pay which varies from week to week depending on the overtime worked, but it is apparent from the year to date figures in Exhibit 14 in respect of the payment made on 23 June 2004 that he received an average for the first three weeks that he was working there of $514 net per week, and in the third week it was $640.70. Two weeks later however the net pay had dropped below $500 for the week. It is difficult to know on this material just what long term average will be achieved from the plaintiff’s current employment, but on the whole a figure of $520 net per week seems reasonable.
- [33]I have gone through these figures in some detail not because a comparison between them and the hypothetical situation of the plaintiff had he not been injured is capable of calculation, but in order to provide a proper factual foundation for a process of assessment which is a matter of judgment or impression. I think it probable that the period of unemployment after the defendant’s business closed down would have been shorter without the injury, and I think there is a real prospect that but for the injury, the plaintiff would have obtained more remunerative employment at that stage. I am not persuaded however that there was any loss in respect of the period when he was working for the other plastic pipe manufacturer. After that position was lost, I think it clear that there would have been a shorter period of unemployment without the hand injury, and he may well have been able to obtain more remunerative, though perhaps not much more remunerative, employment.
- [34]In all the circumstances, I think a reasonable assessment for his uninjured earning capacity up to trial is $550 net per week. In the circumstances I will allow $10,000 in respect of past economic loss during the first period of unemployment, to reflect the probability that without the injury the plaintiff would have obtained alternative employment sooner. I will allow $5,000 in respect of the following period of employment, to reflect the prospect that without injury the plaintiff would probably have been able to obtain a more remunerative job. I will not allow anything in respect of the period when he was working for the other plastic pipe company, but in respect of the second period of unemployment I will allow $5,000; I think it likely he would have obtained employment at least by the time he obtained the employment with the concrete company, and it would probably have been more remunerative employment had he not suffered the injury. There was then a period of 24 weeks during his current employment and I will allow $700 economic loss for that.
- [35]Apart from the period immediately after the accident when the plaintiff was receiving WorkCover benefits therefore I assess past economic loss at $20,700, so that the total past economic loss becomes $28,340. Part of the $20,700 figure should carry interest, but I should first deduct an amount in respect of the social security benefits paid to the plaintiff during the periods of unemployment, in respect of which $15,000 has been allowed.[16] I do not know what that amount was but I will deduct $5,000 to cover it. There will therefore be interest on $15,700 at four percent per annum for three years, $1,884.
- [36]I will also allow for loss of past superannuation benefits, seven percent of $20,700, or $1,449, together with the figure of $606 for the period he was on WorkCover benefits,[17] a total of $2,055.
- [37]With regard to future economic loss, I think there is at the moment some economic loss in that there is a prospect that the plaintiff would have been earning more money but for the injury to his hand, though probably not much more and I would only allow $30 per week as the current loss. Apart from this however he remains at risk in the labour market, and a global figure should be allowed to reflect the fact that if he is unemployed in the future, it is likely to take him longer to obtain employment, and there is good prospect that his employment would be less remunerative than it is now, because he has been injured. For the reasons given, this may well become more pronounced as he gets older; he has another 12 years of working life left. The physical and psychological aspects of his injury are also likely to restrict his ability to achieve advancement in the future, and some modest allowance should be made for the limitation of his prospects of this nature.
- [38]A loss of $30 per week for 12 years discounted on the five percent tables comes to $14,930, but there should be some discount from this to allow for contingencies, to $12,000. Apart from this, there should be a lump sum to cover in effect additional unemployment, and the prospect that in the future he may be taking alternate employment which is less remunerative than his current employment. Counsel for the defendant was content to allow a figure of $20,000 for future economic loss, which is roughly the equivalent of an additional period of 12 months unemployment in the future, with some discounting. I think that is reasonable but would add $5,000 for the reduction in the prospects of future advancement because of the injury. In all the circumstances, I will allow $37,000 for future economic loss. I find that there is at least a 51 percent likelihood that the plaintiff will sustain that economic loss.[18] I will also allow nine percent of that for loss of future superannuation benefits, $3,330.
- [39]Special damages are agreed at $6,540.47. Accordingly the assessment of damages may be summarised as follows:
| $ 27,000.00 |
| $ 28,340.00 |
| $ 1,884.00 |
| $ 2,055.00 |
| $ 37,000.00 |
| $ 3,330.00 |
| $ 6,540.47 |
| $ 6,540.47 |
Total | $106,149.47 |
Less WorkCover refund (Exhibit 3) | $ 13,690.45 |
Total | $ 92,459.02 |
- [40]Accordingly there will be judgment that the defendant pay the plaintiff $92,459. I will publish these reasons and invite submissions in relation to costs.
Footnotes
[1] Plaintiff p. 24; his diagram of the machinery involved is Exhibit 12. Even his wristwatch was crushed: p. 25.
[2] Pp.57-8. On this point I prefer the evidence of Tuffley to the evidence of Dr Pentis at p. 44.
[3] That was possible in the middle of the hand itself: p. 60.
[4] See also plaintiff p. 18.
[5] The plaintiff described his earlier participation as only “fun golf”: p. 22.
[6] He now could not do this work, because of the lifting involved: p. 17.
[7] Page 15; the date of the change is from the 1996 group certificate a copy of which is document 30 in Exhibit 15.
[8] See letter from Marcic which is document 55 in Exhibit 15.
[9] WorkCover Queensland Act s 318.
[10] Document 8 in Exhibit 15: $42,186 minus $9,941.98 minus $632.79 divided by 52.
[11] Document 10 in Exhibit 15: $47,842 minus $12,974.06 minus $717.63 divided by 52.
[12] Document 44 in Exhibit 15: $8,744 minus $1,605 divided by 17.
[13] Document 46 in Exhibit 15: $14,784 minus $2,911 divided by 22.
[14] From tax assessment document 13 in Exhibit 15: $41,483 minus $8,824.90 minus $622.24 divided by 52.
[15] Document 55 in Exhibit 15.
[16] Shield Contractors Pty Ltd v McGill [1997] QCA 359.
[17] See document 53 in Exhibit 15, and addresses p. 68.
[18] WorkCover Queensland Act 1996 s 317; see Nagel v Queensland Rail [2004] QDC 358.