DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff was injured at work on 3 December 2003 when a refrigerator fell on his abdomen. He developed abdominal pain and attended upon a general practitioner the following day. He was diagnosed with acute appendicitis and referred to the Logan Hospital.

2. [2]
   The plaintiff was concerned about the diagnosis and sought a further opinion from another general practitioner. He was referred for abdominal ultrasound. The ultrasound was performed later that day and indicated a grossly thickened appendix which was typical of acute appendicitis.

3. [3]
   He was again referred to the Logan Hospital. The referral letter stated that the ultrasound indicated acute appendicitis.

4. [4]
   The plaintiff presented at the Emergency Department at the Logan Hospital at about 4:30 pm on 4 December 2003. By that stage he had developed generalised abdominal pain that was worse on movement. He had no diarrhoea or vomiting. The doctor noted the result of the abdominal ultrasound. He performed a full blood count and diagnosed that it was unlikely that the plaintiff had appendicitis. The plaintiff was discharged on 5 December 2003. The discharge letter stated that his presenting complaint was abdominal pain and that no diagnosis was made.

5. [5]
   The plaintiff’s abdominal pain persisted and he returned to see a general practitioner on 9 December 2003. The doctor noted that his pain was more generalised but was improving. The plaintiff's pain persisted and he returned to see the general practitioner on 16 December 2003. On this occasion the doctor noted that the plaintiff's pain was easing but that it got worse when he drove his motor vehicle. The doctor wrote a request for a repeat ultrasound examination and planned to review the plaintiff with the results.

6. [6]
   On 22 December 2003 the plaintiff presented at the Emergency Department at the Logan Hospital because he had been experiencing persistent abdominal pain that had slowly worsened over the previous two weeks. Later that day he was taken to the operating theatre and a laparotomy was performed which revealed a large appendiceal phlegmon, a large amount of purulent fluid free in the peritoneal space, oedematous mesentery and small bowel, and numerous fibrous adhesions. The adhesions were broken down and 800 ml of pus was drained from an abscess in the pelvis. The appendix was removed and the peritoneal cavity was lavaged with 8 litres of saline.

7. [7]
   On 28 December 2003 the pelvic drain was noted to be draining a large amount of green fluid. The plaintiff was taken back to the operating theatre on 29 December 2003 and a laparotomy revealed about 2,000 ml of small bowel contents within the peritoneal cavity. The small bowel mesentery was twisted and there was an associated segment of ischaemic small bowel with at least four small holes in the anti-mesenteric border. The bowel was untwisted and holes were oversewn and the abdomen was washed out.

8. [8]
   The plaintiff was taken back to the operating theatre on 30 December 2003 and a laparotomy revealed 30 cm of non-viable small bowel which was resected. He was discharged home on 21 January 2004.

9. [9]
   The plaintiff was readmitted to the Logan Hospital on 23 January 2004 and a partial thickness skin graft was applied to the abdominal wound.

10. [10]
    Liability has been admitted. General and special damages have been agreed. I am required to assess damages for past and future economic loss and future treatment.

The Plaintiff’s background

11. [11]
    The plaintiff was born on 15 December 1969. He is presently 37 years of age.

12. [12]
    He is and was at the time of the incident employed by Dana Kitchens.

13. [13]
    The plaintiff left school at the age of 16. He said that he had not completed junior level.

14. [14]
    After leaving school the plaintiff was employed at Capalaba Industries as a cabinetmaker for 7 years. He then worked for 10 months as a cabinetmaker at A&T Cabinetmakers. He then worked for an unspecified period of time at Empire State Furniture.

15. [15]
    The plaintiff commenced employment with Dana Kitchens in 1996. He worked as a cabinetmaker in the workshop at Darra. He subsequently became a kitchen consultant at Dana Kitchens. At the time of suffering the injury on 3 December 2003, the plaintiff’s position entailed measuring and quoting for kitchens and assisting in delivery and installation.

Medical Evidence

16. [16]
    Dr John Raftos, a specialist emergency physician provided reports dated 25 November 2004 and 20 January 2007.

17. [17]
    Dr Jon Cohen, a general and colorectal surgeon provided three reports dated 28 October 2005, 25 July 2006 and 28 February 2007.

18. [18]
    It is clear the plaintiff’s appendix should have been removed on the evening of 4 December 2003.^[1]  The appendicitis progressed to gangrene and perforation of the appendix.  The perforation of the appendix results in the leakage of pus and bowel contents into the peritoneal cavity causing peritonitis and sepsis.  Dr Raftos states:

“Perforation of the appendix is a potentially life threatening illness and the resultant peritonitis significantly increases the immediate risk of wound infection and the lifelong risk of bowel obstruction by intra-abdominal adhesions.”^[2]

19. [19]
    As a result of the perforation of the appendix, the plaintiff suffered:

• Peritonitis
• Sepsis
• Small bowel necrosis
• Multiple organ failure
• Intra-peritoneal adhesions
• Small bowel obstruction
• A serious wound infection, and
• A painful and unsightly scar on the abdomen
• A incisional hernia which required mesh repair

20. [20]
    The plaintiff required extended hospitalisation, including several additional operations. There were three laparotomies to drain pus, wash out the infection and resect a portion of the small bowel. He has a wide scar to the abdomen which is 29 cm long and occupies most of the length of the anterior abdominal wall.  He faces a significantly increased life-long risk of bowel obstruction because of the adhesions.  There is also a risk of recurrence of incisional hernia.

21. [21]
    Dr Raftos and Dr Cohen were cross-examined with particular emphasis on the issues of future economic loss and future medical expenses.

Agreed damages

22. [22]
    The parties were agreed on the following items of damage:-

Damages to be assessed

23. [23]
    I am required to assess the following heads of damages:-

• Past economic loss
• Future economic loss including superannuation
• Future treatment

Past economic loss

24. [24]
    The plaintiff was absent from work as a result of the injuries he sustained during the following periods:

• 22 December 2003 to 20 March 2004 (12.6 weeks);
• 15 November 2003 to 4 January 2004 (7.1 weeks)

25. [25]
    The plaintiff was paid sick leave for 19 days in the first period and 6 days in the second period, a total of 5 weeks.

26. [26]
    The defendant accepts that the plaintiff was absent from his employment for a period of 14.7 weeks during which he was either not paid wages or was in receipt of annual leave payments. It is common ground that in respect of that period, the plaintiff was in receipt of annual leave payments for 7.7 weeks. The defendant accepts that for the remaining 7 week period the plaintiff is entitled to recover damages in a total amount of $3,822.

27. [27]
    The issue for determination is whether the plaintiff is also entitled to recover the further amount of $4,204.20 in respect of the period of 7.7 weeks during which he was in receipt of annual leave payments.

28. [28]
    Mr Harding for the defendant argues that the plaintiff has suffered no pecuniary loss in respect of that period. He concedes that the plaintiff has suffered the loss of enjoyment of his holidays but submits that he has not suffered any financial loss. He relies upon the decision of the Full Court of the Supreme Court of Victoria in Bosch v Liebe^[3].  In that case Dunn J, with whom the other members of the court (Gowans and Menhennitt JJ) agreed said:

“I think it follows also from Graham v Baker (1961) 106 CLR 340, that where an employee is paid what in effect is wages during his absence from work, the entitlement to which is part of the terms of his employment and not a gratuitous payment, it cannot be said that he has lost wages during that period.

…

In North v Thompson, [1971] WAR 103, all members of the Full Court of Western Australia took the view that payment for annual leave was in effect payment of wages and had to be brought to account, although the members of the court were not in agreement as to the consequences of so doing.

I respectfully agree with the opinion of Burt J, that in the assessment of general damages in such a case one matter to be taken into account is that while the plaintiff has had his holidays, he has not had the advantages of a holiday for pleasure and recreation.”^[4]

29. [29]
    Ms McClymont for the plaintiff relies upon the decision of Philippides J in Kenny & Anor v Eyears & Anor^[5].  In that case Philippides J allowed annual leave and long service leave, but reduced the award to take account of the plaintiff’s savings in respect of travelling expenses to and from work.  Her Honour said:

“As regards the annual leave and long service leave taken by Mrs Kenny, counsel for the defendants referred to the authorities mentioned in Luntz: Assessment of Damages for Personal Injury and Death (3^rd ed, at para 8.3.5).  The authorities demonstrate a difference of opinion as to the credit to be given to a plaintiff who has used such entitlements during a period of disability.  On one view, full compensation should instead be allowed for loss of enjoyment of the leave as part of the plaintiff’s general damages.  In the circumstances of this case, I am prepared to adopt the approach taken by the majority in North v Thompson [1971] WAR 103 at 105 and permit recovery of the full amount of the leave.”^[6]

30. [30]
    In my view it is significant that the authorities relied upon by Mr Harding pre-date legislation analogous to the Civil Liability Act 2003.  It was not suggested by Mr Harding that the period of 7.7 weeks during which the plaintiff received annual leave payments had been expressly taken into account in arriving at the agreed general damages of $31,400.  In the circumstances, I would prefer to follow the more recent decision of Philippides J in Kenny & Anor v Eyears & Anor^[7].  It was not suggested by Mr Harding that there should be any reduction on account of savings in respect of travelling expenses to and from work during the relevant period.  I would therefore allow past economic loss in the agreed amount of $3,822 together with the sum of $4,204.20 in respect of the period of 7.7 weeks during which the plaintiff received annual leave payments.  This results in an award of $8,026.20 for past economic loss.

Future economic loss

31. [31]
    The plaintiff is an experienced cabinetmaker but during his period of employment with Dana Kitchens he became a kitchen consultant. His employer, Mr Niels Bo Jensen (who is not related to the plaintiff) estimated that a cabinetmaker earns $35,000 to $40,000 per annum^[8], whereas a kitchen designer can earn in the vicinity of $80,000 per annum^[9].  Mr N B Jensen said that kitchen designers are able to earn commission on their sales^[10].

32. [32]
    Mr N B Jensen said that the plaintiff was more valuable as a kitchen designer because of his skills as a cabinetmaker. He said that kitchen sales consultants and designers are required to perform some lifting work^[11].

33. [33]
    As a result of his injuries the plaintiff experiences discomfort and pain if he lifts anything moderately heavy. Mr N B Jensen said that since the plaintiff had suffered the injuries he had not seen him lift anything heavier than a briefcase. He has observed the plaintiff suffering pain from day to day and has noticed that he cannot move as freely as he previously did.

34. [34]
    The plaintiff experiences difficulties while driving. On occasions he says that he feels cramps and is required to take a break from driving^[12].  The injury has affected his energy levels and he becomes worn out more quickly^[13].

35. [35]
    Mr N B Jensen said that since the accident the plaintiff has made some “costly mistakes” which he attributes to the injury^[14].  He said that as a result of the plaintiff’s inability to lift moderately heavy objects, he is required to send another employee with him to perform that task^[15].

36. [36]
    Mr N B Jensen described the plaintiff as a valuable employee before he suffered the injury. He clearly regards the plaintiff highly and kept his position open during the plaintiff’s 3 month convalescence period. However he expressed a clear preference for an employee who did not have the plaintiff’s physical difficulties^[16].  He said that Dana Kitchens was a compassionate employer but that a change in economic conditions could result in “tough decisions” being made^[17].

37. [37]
    In order to attempt to demonstrate that the plaintiff would not suffer any disadvantage on the open labour market, the defendant called Mr Brett Rewald, the manager of Kawana Kitchens in Rockhampton. He said that kitchen designers are not required to do any sort of heavy lifting and illustrated that by saying that one of his employees had a back injury for which he had received a WorkCover payout^[18].  He said that Kawana Kitchens would have no concerns in hiring a person as a kitchen designer who was unable to do heavy lifting^[19].  In cross-examination he elaborated by saying that by heavy lifting he was referring to objects the size of a sink or hotplates^[20].  He conceded that he would be concerned about a potential employee who experienced discomfort with lengthy periods of sitting or driving^[21].

38. [38]
    Kawana Kitchens designers use a computer system. Mr N B Jensen said that Dana Kitchens has recently acquired a computerised design system which had not, at that stage, been implemented^[22].  When asked in re-examination whether there was any reason to doubt that the plaintiff might be able to complete the necessary training in the computer based design system, Mr N B Jensen said:

“I mean Paul has been introduced to the computers for not – for too long and I guess he’s not the smartest at it, but I’ve got hope that he will learn, yeah, yeah and we’ll see how we go.”^[23]

39. [39]
    Mr Rewald’s evidence does not persuade me that the plaintiff would suffer no disadvantage on the open labour market. Kawana Kitchens conducts its business from Rockhampton and the plaintiff presently resides in Brisbane. It is clear in any event that Mr Rewald would be concerned about a potential employee presenting with difficulties sitting for lengthy periods of sitting or driving. Mr Rewald said that Kawana Kitchens performs jobs in Cairns, Townsville, Mackay and Brisbane and that the designers may be required to commute to those destinations^[24].

40. [40]
    Section 55 Civil Liability Act 2003 provides:

“55 When earnings can not be precisely calculated

3. (1)
   This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

3. (2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

3. (3)
   If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

3. (4)
   The limitation mentioned in section 54(2) applies to an award of damages under this section.”

41. [41]
    Ms McClymont for the plaintiff submits that the appropriate award for future economic loss is $100,000. She submits there should be a further allowance of $9,000 for future loss of superannuation at 9 per cent.  Mr Harding for the defendant submits that there should be no allowance for future economic loss.  He points out that the plaintiff intends to remain at Dana Kitchens and enjoys working there.  He also pointed out that the plaintiff was regarded as a valuable employee.  Mr Harding submits that even if the plaintiff is required to seek alternative employment, the evidence establishes that there would be no impediment to him doing so.  He relies upon the evidence of Mr Rewald and submits that Kawana Kitchens employs a designer who cannot do any lifting at all.

42. [42]
    I am satisfied that the plaintiff will suffer loss of earnings as a result of his injuries and that it is appropriate to make a global assessment to take account of his disadvantage in the future on the open labour market.

43. [43]
    I am required by s 55(3) to state the assumptions on which the award is based and the methodology used to arrive at it. In Ballesteros v Chidlow & Anor^[25] Fryberg J said:

“What is sufficient to enable compliance with the subsection? ‘Assumptions’ and ‘methodology’ operate in tandem in the provision, and the one throws light on the other.  Both words have overtones of at least quasi-mathematical meaning.  ‘Assumptions’ could, of course, refer to the facts found by the judge upon which the award is based.  In my view that would be a most inappropriate use of the word, and it seems unlikely that it was intended in this context.  Apart from anything else, the subsection would be unnecessary if that were the meaning, since judges must in any event state their findings of fact.  In the context of making a global award where, ex hypothesi, precise calculation by reference to a defined loss is impossible, it is much more likely to have been intended to refer to assumed facts underlying one or more hypothetical calculations which a judge might use in order to get a general idea of what might constitute a suitable global figure; or to similar facts; or to similar facts or sets of facts used by the judge to confirm or cross-check a global figure selected by making an experienced guess.  That in turn suggests that ‘methodology’ does not refer to anything too demanding.  In this context, an experienced guess is a legitimate methodology, although if possible it should be dissected in a manner appropriate to the circumstances of the case in order to understand what it might imply in those circumstances and thereby to confirm that the figure is of an appropriate order of magnitude.”^[26]

44. [44]
    In arriving at the appropriate award I have had regard to the following factors:

• The plaintiff is presently 37 years of age and has a further 28 years of working life until normal retirement age;
• He has suffered a serious physical injury;
• He cannot work as a cabinetmaker;
• Although unable to work as a cabinetmaker the plaintiff earns considerably more as a kitchen designer;
• The plaintiff’s present employer Dana Kitchens has adopted a compassionate attitude to date;
• Dana Kitchens has been conducting business since 1983 and it is likely to continue operating;
• The plaintiff intends to remain at Dana Kitchens and his employer intends to retain him;
• There is a prospect that changed economic conditions or a deterioration in the plaintiff’s condition will result in him seeking alternative employment;
• There is the prospect that the plaintiff will develop bowel obstructions requiring surgical repair in the future.

45. [45]
    In the circumstances I would allow $60,000 for future economic loss. I would allow a further sum of $5,400 for future loss of superannuation.

Future surgical treatment

46. [46]
    Dr Raftos and Dr Cohen gave evidence relating to the plaintiff’s need for future surgery.

47. [47]
    In his report dated 20 January 2007 Dr Raftos said:-

“There is a greater than 50 per cent likelihood that Mr Jensen will require surgical division of adhesions for small bowel obstruction in the future.”

48. [48]
    Dr Raftos estimated that 10 to 20 per cent of patients with intra-abdominal adhesions will require a surgical procedure in the future^[27].  He expressed the opinion that the plaintiff was in the upper end of that group^[28].

49. [49]
    Dr Raftos estimated that the total cost of surgery to divide the abdominal adhesions was $7,000 to $10,000^[29].

50. [50]
    In his report dated 28 January 2007 Dr Cohen said that as the plaintiff had already had considerable abdominal surgery, there was a risk of future bowel obstruction from adhesions. He said that this could not be quantified. He estimated that the cost of the surgery would be in the vicinity of $10,000^[30].

51. [51]
    It is not clear when surgery may be required for surgical division of adhesions for small bowel obstruction. Dr Raftos was asked in cross-examination by Mr Harding whether the risk of surgery reduced with the passage of time. Dr Raftos said that he had seen patients with bowel obstructions related to surgical procedures performed 30 years earlier and in other cases patients experienced their first bowel obstruction within the first year^[31].

52. [52]
    The evidence of the cost of the surgery and when it may be required is uncertain. I therefore consider that it is appropriate as submitted by Mr Harding for the defendant to adopt $9,000 as the cost of the surgery, deferred for a period of 10 years. This results in an amount of $5,526. Mr Harding submits that there should be an award of 20 per cent of that amount to reflect the possibility that surgery will be required. However, in my view the evidence of Dr Raftos was that the plaintiff fell somewhere within the upper end of 10 per cent to 20 per cent of patients with intra-abdominal adhesions who would require future surgery. In his report dated 20 January 2007 Dr Raftos said that there was a greater than 50 per cent likelihood that the plaintiff would require surgical division of adhesions for small bowel obstruction in the future. I would therefore allow 50 per cent of $5,526 leading to an award of $2,763 for future surgery for bowel obstruction.

53. [53]
    There is a risk that the plaintiff will suffer a recurrence of his incisional hernia which will require repair. Dr Raftos and Dr Cohen agreed that the recurrence rate was generally 5 per cent to 10 per cent for persons who had previously had operative treatment for incisional hernia. However, in view of the plaintiff’s previous serious infection and repeat laparotomies, Dr Raftos and Dr Cohen agreed that the plaintiff faced a greater prospect than the usual statistical risk. They agreed that in the plaintiff’s case the risk was in the vicinity of 20 per cent.

54. [54]
    Dr Raftos estimated that the cost of surgery for repair of the incisional hernia was $7,000 to $10,000^[32].  Dr Cohen estimated that the cost would be in the vicinity of $5,000^[33].

55. [55]
    There was no indication from Dr Raftos and Dr Cohen as to when the hernia repair would be required. In those circumstances it is appropriate to assess the cost of future surgery on the basis that it is not likely to be required for some time. I would adopt a mid range amount for the cost of the surgery being $7,000 deferred for 10 years. That results in an amount of $4,298. It is appropriate to allow 20 per cent of that amount to reflect the chance that the surgery will be required. I would therefore allow $860 in respect of the cost of future surgery for the repair of the plaintiff’s incisional hernia.

56. [56]
    The total award for future surgical treatment is therefore $3,623.

Future expenses

57. [57]
    The plaintiff is required to exercise caution with his diet and take regular fibre supplements such as Metamucil. The plaintiff has said that he purchases Metamucil every two to three weeks at an approximate cost of $6 to $7^[34].

58. [58]
    Ms McClymont for the plaintiff submits that allowing $2.50 per week for the duration of the plaintiff’s 43 year life expectancy should result in an award of $2,345 (on the 5 per cent tables for 43 years; factor 938).

59. [59]
    Mr Harding for the defendant submits that there should be no award for future cost of Metamucil because there is no such claim in the statement of claim and it is not made in the statement of loss and damage. Alternatively he submits that a modest global assessment of $500 should be made.

60. [60]
    Rule 548(4) Uniform Civil Procedure Rules 1999 provides:

“At the trial, the plaintiff may call or tender evidence not identified in the plaintiff’s statement of loss and damage or not given to the defendant under this part only if –

1. (a)
   the evidence is called or tendered by consent; or

2. (b)
   the evidence is called or tendered in cross-examination; or

3. (c)
   the court for special reason gives leave.”

61. [61]
    Mr Harding did not initially object to the plaintiff’s evidence in relation to the cost of Metamucil when it was given. Immediately after giving that evidence the plaintiff began to outline lawn mowing costs. Mr Harding then objected to any claim for damages for gardening services^[35].  In the argument that followed, Mr Harding said that he had not objected to the evidence relating to the cost of Metamucil because it seemed to be for a relatively small amount^[36].  Ms McClymont for the plaintiff has abandoned any claim for lawn mowing costs.  The only claim for future expenses relates to the cost of Metamucil and I consider that it should be allowed.  However, I would discount the amount of $2,345 by 15 per cent to allow for contingencies.  This will result in an award of $1,990 for future expenses.

Summary

62. [62]
    There will be judgment that the defendant pay the plaintiff $111,750.53.

63. [63]
    I will hear submissions in relation to costs.