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Richard Garth v BSE Cairns Slipways Pty Ltd[2015] QDC 343

Richard Garth v BSE Cairns Slipways Pty Ltd[2015] QDC 343

DISTRICT COURT OF QUEENSLAND

CITATION:

Richard Garth v BSE Cairns Slipways Pty Ltd  [2015] QDC 343

PARTIES:

RICHARD GARTH

(Plaintiff)

v

BSE CAIRNS SLIPWAYS PTY LTD (ACN 153 468 627)

(Defendant)

FILE NO/S:

3/2015

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Cairns

DELIVERED ON:

27 November 2015

DELIVERED AT:

Cairns

HEARING DATE:

26, 27 & 28 October 2015

JUDGE:

Morzone QC DCJ

ORDER:

  1. Judgment for the plaintiff against the defendant in the sum of $318,183.85.
  1. The defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis, unless either party applies for a different order within 14 days of this judgment.

CATCHWORDS:

TORTS – NEGLIGENCE – breach of common law and/ or statutory duties – where the plaintiff was injured when he walked into a metal box shaped cover at night – primary liability admitted – whether the plaintiff contributory negligent - whether failing to keep a look out and adequately use torch – whether inadvertence, inattention or misjudgment.

DAMAGES - MEASURE OF DAMAGES – PERSONAL INJURIES – wrist injury – pre-existing conditions – general damages – whether has suffered loss of earning capacity – assessment of future economic loss and future surgery.

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2013 (reprint as at 14 August 2003), ss 305F, 305H & 305I

Workers Compensation and Rehabilitation Regulation 2014

CASES:

McLean v Tedman (1984) 155 CLR 306

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

State Of Queensland v Kelly [2015] 1 Qd R 577

Osbourne v Downer EDI Mining Pty Ltd [2010] QSC 470

Koven v Hail Creek Coal Pty Ltd [2011] QSC 051

COUNSEL:

M Glen for the Plaintiff

R Morton for the Defendant

SOLICITORS:

Turner Freeman Lawyers for the Plaintiff

BT Lawyers for the Defendant

  1. [1]
    It was about 1:20am on 31 August 2012 when the plaintiff broke his wrist, after tripping on a metal box, while he was locking up and turning off the lights in the course of his work as the night shift foreman at the defendant’s slipway.
  1. [2]
    The defendant accepts primary liability but alleges that the plaintiff is guilty of contributory negligence for failing to take precautions from an obvious risk of tripping on the metal box. The parties are also in dispute about some heads of damage, especially general damages, future economic loss and future surgery.

Background

  1. [3]
    The plaintiff was born on 25 May 1965 and was 47 years of age on 31 August 2012. He was 50 years old at trial. He is right hand dominant.
  1. [4]
    The plaintiff was employed by the defendant as a night shift foreman at the defendant’s slipway business in Cairns. He was promoted to that role in July 2012 after serving as the shift foreman. His duties included locking up and turn off all the lights at the slipway premises at the end of each night shift.
  1. [5]
    At 1:20am on 31 August 2012, in the course of the locking up process, the plaintiff tripped on a fixed metal box structure outside the ‘smoko room’, lost balance and fell onto and injured his left wrist.
  1. [6]
    The defendant accepts primary liability but alleges that the plaintiff is guilty of contributory negligence. The defendant attributes 35% for the plaintiff’s failure, so far as reasonably practical, to take account of an obvious risk of tripping on the metal box. The plaintiff disputes he faced an obvious risk and denies any liability.
  1. [7]
    The plaintiff claims that he suffered a disruption and/or tear of the dorsal ulna capsule, and tissue injury to the left wrist. The plaintiff relies upon his own testimony, including his written ‘Quantum Statement’, as well as medical, financial, and economic evidence.
  1. [8]
    The parties remain in dispute about general damages, future economic loss and future surgery.

Contributory Negligence

  1. [9]
    The defendant alleges that the plaintiff caused and/or contributed to the incident by his own negligence by:
  1. (a)
    Failing to watch where he stepped;
  1. (b)
    Failing to use to a torch to illuminate his path of travel;
  1. (c)
    Failing to keep a proper lookout;
  1. (d)
    Failing to use the torch, effectively or at all, to illuminate his path of travel;
  1. (e)
    Failing to illuminate the area in which he was working with the headlights of the motor vehicle supplied to him by the defendant with a purpose of traversing the defendant’s premises;

In the alternative

  1. (f)
    Walking away in the area in which the metal box was located when a reasonable person would not have done so as:
  1. (i)
    it was not a thoroughfare;
  1. (ii)
    it did not lead to any destination to which the plaintiff was required to, or could, travel;
  1. (iii)
    the plaintiff alleges that the area was unlit;
  1. (iv)
    the plaintiff alleges that he was unable to see obstacles on the ground.
  1. [10]
    Contributory negligence must be considered in the context of liability as a whole.
  1. [11]
    In McLean v Tedman(1984) 155 CLR 306at [315] the Mason, Wilson, Brennan and Dawson JJ said as follows:

“…the question is whether that failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognised distinction between the two.  It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account.  And the issue of contributory negligence is essentially a question of fact. 

As Windeyer J observed in Sungravure when an employee…sustains injury, the jury in considering contributory negligence may have regard to “inattention bred of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions”.  It is thenfor the Tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk “excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man””.

  1. [12]
    Later in Bankstown Foundry Pty Ltd v Braistina[1]Mason, Wilson and Dawson JJ said at 310: 

“A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury.  But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks.  The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage”

  1. [13]
    The general law is supplemented by provisions of Division 4, Part 8 of Chapter 5 of the Workers’ Compensation and Rehabilitation Act2003 (reprint as at 14 August 2012) (“WCRA”) which are also applicable and relevantly provide as follows:

305F  Standard of care in relation to contributory negligence

(1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the worker who sustained an injury has been guilty of contributory negligence in failing to take precautions against the risk of that injury.

(2) For that purpose—

(a) the standard of care required of the person who sustained an injury is that of a reasonable person in the position of that person; and

(b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.

305G  Contributory negligence can defeat claim

 In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.

305H  Contributory negligence

(1) A court may make a finding of contributory negligence if the worker relevantly—

…

(f) undertook an activity involving obvious risk or failed, at the material time, so far as was practicable, to take account of obvious risk; …

(2) Subsection (1) does not limit the discretion of a court to make a finding of contributory negligence in any other circumstances.

(3) Without limiting subsection (2), subsection (1)(f) does not limit the discretion of a court to make a finding of contributory negligence if the worker—

(a) undertook an activity involving risk that was less than obvious; or

(b) failed, at the material time, so far as was practicable, to take account of risk that was less than obvious.

305I  Meaning of obvious risk for s 305H

(1) For section 305H, an obvious risk to a worker who sustains an injury is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the worker.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

  1. [14]
    Whether a risk is an ‘obvious risk’ within ss 305H and 305I is determined objectively, having regard to the particular circumstances involving the the plaintiff. The plaintiff’s subjective state of mind is not determinative; instead, consideration must be given to what a reasonable person in the plaintiff’s position would regard as obvious. So, the question is whether the plaintiff failed to take account of a risk of harm which would have been obvious to a reasonable person in his position. The position of the plaintiff will include the plaintiff’s knowledge and experience of the area and conditions, and the particular circumstances in which the risk materialised and the harm was suffered.[2]
  1. [15]
    Of course, an absence of a finding of an obvious risk will not limit the discretion of a court to make a finding of contributory negligence if the plaintiff’s activity or failure involved a risk that was less than obvious.
  1. [16]
    It seems to me that the legislative provisions do very little, if anything, to alter the common law.[3]They affirm the application of the common law in relation to workers (s 305F&G); highlight some circumstances where a court “may”make a finding of contributory negligence (s 305H); and draw attention to the term ‘obvious risk’ (s 305I). 
  1. [17]
    It is not difficult to accept that a reasonable person would readily appreciate that walking into the metal box would realise a risk of tripping over the metal box. However, the issue must not be considered in a vacuum. It requires consideration of a reasonable person in the plaintiff’s position and particular circumstances including his familiarity, knowledge and experience of the area and the prevailing conditions.
  1. [18]
    The evidence of these matters predominantly fell from the plaintiff, who impressed me as a stoic, candid and reliable witness. His account was uncontradicted and consistent with the expert evidence of Mr Chau.
  1. [19]
    Over time the plaintiff had adopted a process of locking up and turning off all the lights at the slipway premises at the end of each night shift. This process included travelling along a familiar route adjacent to the smoko room past a septic tanks pump and flow switch, which was covered by a metal box structure. The metal box had dimensions of about 700mm long, 520mm wide and 300mm high from ground level.
  1. [20]
    The metal box was fixed to the ground about 1150mm off the smoko room external wall and about 1550mm to the right of the smoko room doorway (towards a wash area).[4]It had a dark metallic grey surface, and was fixed to a concrete pad surrounded by a dark grey/blackened ground surface in the foreground and a concrete surface in the background.
  1. [21]
    At 1:15am on 31 August 2012, the plaintiff was in the process of shutting down at the end of his shift. He turned off the lights in the smoko room. He held a torch light in his left hand and closed the door to the smoko room with his right hand. He then turned to his left to walk away from the smoko room door; however, he turned back to the smoko room door to double check that it was locked. The plaintiff then turned away from the door a second time and started to walk away from the smoko room. As he did that, he tripped on the metal box, lost balance and fell onto and injured his left wrist.
  1. [22]
    The plaintiff had undertaken the shutting down duties several days a week since working as shift foreman for about 6 months from February 2012. His process and path varied depending upon the jobs undertaken, the number of staff, and whether areas were used each night.
  1. [23]
    The plaintiff usually worked an 8 hour shift starting 3:30pm until 11:30pm. He could not recall the precise time when he started working on the night of the injury, but said “it may have even been a 5 o’clock start”.[5]On my reckoning, by the time of his injury the plaintiff had worked about 8 hours, and perhaps longer.  In that context he, described feeling “normal” at the time of the injury.[6]
  1. [24]
    The plaintiff testified that it was “a pretty dark night”.[7]This is consistent with the evidence of a weather report that there were scattered clouds perhaps shrouding the full moon.[8]I accept his evidence that the external fluorescent lights under the eave of the smoko room were not illuminated or not working.  Although other areas of the site may have been under floodlights, I find that there was little or no light spilling from those areas to the area that the plaintiff sustained his injury.  The plaintiff described the extent of lighting after he switched off the smoko room lights as “Dark, Only just my torch light.”[9]His perception was also affected by his transition from the brightly lit smoko room into a state of darkness (except for his torch light) over a period of about 8-10 seconds.
  1. [25]
    The plaintiff was unable to identify the particular torch he used that night. He identified similar Dolphin brand torches. These were the subject of examination and the expert engineering report of Mr Anthony Chau and Dr Ludche. Whilst the Plaintiff had a torch capable of illuminating the metal box,[10]the engineers estimated that the light at the metal box was 0.09 lux.[11]The plaintiff also accepted that the light from to torch would have illuminated the box.[12]However, I have no hesitation finding that the torch available to the plaintiff had a dim light and was inefficient.  It would have remained inadequate to sufficiently light that area for ideal pedestrian access.[13]
  1. [26]
    The defendant was critical of the plaintiff’s aim of the torch in circumstances when he knew the obstruction (metal box) was there and he intended to walk around it.[14]Once the plaintiff closed the smoko room door and completed his turn, the metal box would have been very proximate to his feet.  It was well below the plaintiff’s usual line of sight as he illuminated and looked at the path ahead.  That path was one facilitated by removable stairs en routeto the plaintiff’s next logical destination, and it was not practical or reasonable to use the work vehicle lights.
  1. [27]
    The plaintiff’s conduct is consistent with inattention bred of familiarity of the area and repetition of the task. The metal box created a risk, which was even more pronounced given the time of day, the end of shift task, inadequate lighting and poor equipment. However, these same conditions made the risk less obvious to a reasonable person in the position and circumstances of the plaintiff. In my view, he had developed a level of complacency, engendered by familiarity and repetition, but which was not incompatible with the conduct of a reasonable and prudent man.
  1. [28]
    The defendant has properly conceded primary liability. In my view, the plaintiff’s conduct amounted to mere inadvertence, inattention or misjudgement, and did not amount to negligence. In the circumstances of this case, the plaintiff did, far as was practicable, take account of risk posed by the metal box. In my view, it would not be just and equitable to render him responsible for any part of the damage.
  1. [29]
    In any event, it seems to me that for the same reasons, that the primary failure of the defendant to properly maintain or replace the metal box giving rise to the risk was not of itself so obvious to a reasonable person in the position of the plaintiff. Therefore, the resultant risk is deemed ‘not an obvious risk’ by virtue of s 305I(5) of the Workers’ Compensation and Rehabilitation Act2003 (reprint as at 14 August 2012). 

Assessment of Damages

  1. [30]
    The parties remain in dispute about general damages, future economic loss and future surgery.
  1. [31]
    The assessment of damages is to be at common law, subject to the provisions of the WCRA[15]and the Workers Compensation and Rehabilitation Regulation(“the Regulation”).

General Damages

  1. [32]
    The plaintiff was not contradicted or significantly challenged in relation to his evidence of pain and suffering and loss of amenities. I have no hesitation accepting his evidence, which was consistent with the expert medical assessments.
  1. [33]
    Immediately following the fall the plaintiff felt “hellish pain and it was throbbing” in his left wrist and left hand region.  He struggled not to “black out”.  He developed a big lump the size of an egg on the outside of the wrist, and had an abrasion of the lower forearm region.[16]
  1. [34]
    The plaintiff has undergone two surgical procedures and other medical treatment in respect of his left wrist. He continues to suffer loss of strength and movement, swelling and aching pain in the left wrist, with sharper pain when aggravated. The plaintiff’s left wrist was extremely painful following the first surgery and took a long time to resolve after further surgical intervention. His condition has been worsening over time. His wrist aches “a lot more than it used to, more regularly, and…the intensity has increased”.  The duration of aching is now longer.[17]   
  1. [35]
    Dr Sarah Coll, an orthopaedic surgeon, initially reported on 15 October 2012 that she suspected a triangular fibrocartilage complex tear (TFCC) was most likely, but she could not be definitive at that stage.[18]Dr Coll performed a reconstruction of the left distal radioulna joint and arthroscopy of the left wrist.[19]Her operative report describes that she debrided the distal radial ulna joint; and undertook a capsular plication and repair of the ulnotriquetral ligament with insertion of 2 x mini Mitek anchors.[20]
  1. [36]
    When orthopaedic surgeon Dr Samuel McKewin examined the plaintiff in August 2013 he formed the view that a Mitek anchor placed in the lunocapitate joint was the likely cause of the plaintiff’s most significant pain, and it required removal. He further opined that the plaintiff “may have an underlying TFCC tear or distal radioulna joint instability but I think any signs and symptoms of this, are masked by the offending anchor”.[21]On 20 September 2013 Dr McKewin removed the Mitek anchor from the plaintiff’s mid carpal joint, and he noted degenerative changes within that joint.[22]Whilst, Dr McKewin was optimistic about the plaintiff’s improvement he later reported that: “He does…have some osteoarthritis involving the mid carpal joint as a result of this anchor and I would think failure of him to progress over this time would be a reflection of that.”[23]Dr McKewin has continued to review and treat the plaintiff.  He referred the plaintiff for nerve conduction testing which did not reveal any evidence of left ulna neuropathy.[24]
  1. [37]
    Dr Couzens, an orthopaedic hand and wrist surgeon, concluded the plaintiff had sustained a disruption of the dorsal ulna capsule of the left wrist; ulna triquetral ligament damage; and post-traumatic stiffness of the left wrist and early mid-carpal arthrosis.[25]In a later memorandum he opined that the midcarpal arthrosis has probably been caused by one of the anchors rubbing in the midcarpal joint.  Dr Couzens was in general agreement with Dr McKewin’s view that that the plaintiff does have some osteoarthrosis involving the midcarpal joint as a result of the anchor having been placed in it.  The CT scan of 5 March 2013[26]demonstrated the anchor in the lunate extending into the capitate lunate articulation consistent with that finding.[27]Dr Couzens acknowledged the difficulty being precise about the cause of the plaintiff’s ongoing ulna pain (if it was not the midcarpal arthrosis).  However, he opined that the plaintiff’s ulna sided symptoms are consistent with a wrist injury as described by the plaintiff.[28]Dr Couzens concluded that the plaintiff suffered a dorsoulna capsular tear and developed painful midcarpal arthrosis and undiagnosed ulna pain.  Based on restricted range of motion the plaintiff had a total upper extremity impairment of 7% which corresponded to a whole person impairment of 4%.
  1. [38]
    Dr Brett Halliday, a consultant orthopaedic surgeon, whose evidence I prefer, has assessed the plaintiff more recently. In his report 4 March 2015.[29]Dr Halliday concluded that the Plaintiff was suffering a 6% whole person impairment assessed on the AMA 5thEdition Guides, the rationale for which was as follows:

“There were no inconsistencies in the examination.  There was no evidence of any significant pre-existing condition relating to the left wrist… He has a restricted range of motion of the left wrist.  This is consistent with his injury and surgeries.  His restricted range of motion affords him 11% impairment of the upper limb which equates to a 6% impairment of the whole person.  The impairment is permanent.”[30]

  1. [39]
    Dr Halliday ruled out any significant pre-existing condition related to the left wrist, cognisant of the plaintiff’s 1991 fracture of the left hand metacarpal; his 1999 radial artery laceration from a grinder explosion over the left wrist;[31]and an unsubstantiated allegation of Mr Gearn in the WorkCover communication report.[32]Further, I accept the plaintiff’s evidence that:

“As at 31 August 2012 I was not suffering any pain, swelling, restriction of movement or any other symptoms in my left wrist.  I had not suffered any symptoms in my left wrist since the grinder injury back in 1999.”[33]

  1. [40]
    Therefore, I reject the defendant’s contention that the plaintiff’s symptoms result from a pre-existing condition, including that any disruption or tear of the dorsal ulna capsule was pre-existing.
  1. [41]
    The worsening condition noted by the plaintiff, and the area in which he described worsening pain over the top of the metal carpal central to the left hand is consistent with a worsening degenerative condition identified by the medical evidence.
  1. [42]
    Dr McKewin found degenerative change within the mid-carpal joint at operation and formed the view that that degenerative change was attributable to the placement of the mitek anchor. Dr Couzens formed the view that the plaintiff was suffering “early midcarpal arthrosis”and that the arthritic change in the midcarpal joint found by Dr McKewin “would be expected to be a progressive condition which will deteriorate with time”. 
  1. [43]
    In his later memorandum, Dr Couzens further stated:[34]
  • It is apparent in this Plaintiff’s case that the midcarpal arthrosis is progressive. He has x-rays over a period of time showing x-ray changes.
  • As a general rule arthritis will generally become more symptomatic over a 5 to 8 year period. It is generally a fairly slow process but a very predictable process.
  • The Plaintiff is going to have increased pain and increased stiffness in his wrist over time.
  • With the progressive deterioration in his wrist, Dr Couzens would expect his work capacity would be further impaired. It would be impaired mainly due to pain. The pain will also lead to some restriction in motion and consequently restriction in grip strength and lifting capacity.
  • Generally within about 5-8 years a patient with arthrosis is going to need to have some sort of procedure done and that procedure will usually be a fusion of some sort.
  • Fusion is likely to change his impairment a little because he is going to lose a degree of motion. But by the time he comes to surgery he probably will have lost a fair degree of motion anyway. One could estimate that if the Plaintiff had the fusion in the future he would end up with an upper extremity impairment of closer to 14%.
  • A mid carpal fusion is a pretty major undertaking and the Plaintiff would require about 12-16 weeks of rehab getting over that surgery.
  • As the Plaintiff suffers increased pain and stiffness in his wrist, that will impact on his work capacity.
  1. [44]
    Dr Halliday concluded that the plaintiff’s “injury prognosis is one of status quo”.  He said that there may be a very slow deterioration over many years in the form of degenerative change but it is unlikely to change by 3% in the next months.  He also added that surgical intervention in the form of a fusion in the future “may well increase the impairment rating”.[35]
  1. [45]
    I find that the plaintiff sustained a soft tissue injury to his left wrist as a result of his accident. He suffered an injury to the dorsal ulna capsular ligament and dorsal lunotriquetral ligament, with a further unidentified injury to the ulnar region of the left wrist and consequential mid-carpal arthrosis. That mid-carpal arthrosis was caused by the insertion of the mitek anchor in the lunocapitate joint which was caused by the injury. Having regard to the whole of the evidence, I accept that the injury has left the plaintiff with a significantly restricted range of motion resulting in a 6% whole person impairment. This is likely to increase with future deterioration of the mid-carpal arthrosis, requiring an operative fusion in five to eight years.
  1. [46]
    The plaintiff’s general damages must be assessed in accordance with the “Injury Scale Value”assessment process contained in Schedule 9 to the Regulation. 
  1. [47]
    The plaintiff’s injury falls within Item 106 “Moderate wrist injury”with an ISV range of 6 to 15.  The comment providing guidance in respect of Item 106 is that an ISV “at or near the bottom of the range will be appropriate if there is a WPI of 6%”. 

106 Moderate wrist injury

 

 

Examples of the injury

• A wrist injury that is not serious and causes some permanent disability, for example, some persisting pain and stiffness

• Persisting radio-ulnar instability

• Recurrent tendon subluxation or entrapment

Additional comment about appropriate level of ISV

• An ISV at or near the bottom of the range will be appropriate if there is whole person impairment for the injury of 6%.

• An ISV at or near the top of the range will be appropriate if there is whole person impairment for the injury of 12%.

6 to 15

  1. [48]
    In accordance my findings the plaintiff’s ISV would, without more, fall in the bottom end of the range. However, when assessing the appropriate ISV, the court may have regard to other matters to the extent they are relevant in a particular case.[36]
  1. [49]
    I accept the plaintiff’s submissions that account should be taken of other relevant matters to namely:
  1. The plaintiff initially suffered a delay in diagnosis and significant pain;
  1. He was required to undergo an initial surgery on 29 October 2012 in the form of a left wrist arthroscopy and open reconstruction of the dorsal lunatotriquetral ligament using bone anchors into each bone;
  1. That initial surgery was unsuccessful in relieving the plaintiff’s pain, as was substantial post-surgical hand therapy. 
  1. Almost a year later on 20 September 2013 the plaintiff underwent an open procedure to remove a loose intra-articular anchor. 
  1. Since then the plaintiff continued to suffer ongoing constant pain of significance with regular exacerbations.
  1. He has degenerative changes in the mid-carpal joint which are likely to be progressive.
  1. He is likely to require at the least a wrist arthroscopy for diagnostic purposes and will likely require a four bone fusion within a period of 5 to 8 years.
  1. [50]
    It seems to me that after taking these matters into account, the plaintiff ought be appropriately categorised in the about middle of the range of Item 106 being an ISV of 10. Therefore, I assess general damages in the sum of $14,000.00 being (ISV10 – 5) x $1,530 + $6,350).[37]

Future economic loss

  1. [51]
    An award for future economic loss should equate to the reduction in the plaintiff’s earning capacity to the extent that it may be productive of financial loss. This is often difficult to assess with precision using a defined weekly loss where, as here, the plaintiff has not realised the actual loss but is likely to do so in the future.
  1. [52]
    Section 306J of the WCRA provides:

306J When earnings can not be precisely calculated

(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.

(2) The court may only award damages if it is satisfied that the worker 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) 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.

(4) The limitation mentioned in section 306I(2) applies to an award of damages under this section.

  1. [53]
    Prior to the accident the plaintiff had a demonstrated capacity to work as a “hands on”supervisor carrying out a range of heavy physical tasks whilst also performing a supervisory role.  He has a consistent history of part earnings commensurate with his position.  The defendant’s pay records[38]shows that in the year ended 30 June 2013 the Plaintiff earnt $70,562.43 nett which averages to $1,357.00 nett per week.  For the 6 week period the Plaintiff worked immediately prior to the incident (weeks ending 25 July 2012 to 29 August 2012) the plaintiff earned $8,018.20 nett being an average of $1,336.37 nett per week.  Accordingly it appears the plaintiff’s notional earning capacity at the date of the incident is somewhere between $1,336.00 and $1,357.00 nett per week.  I will adopt $1,345.00 nett per week.
  1. [54]
    Both expert occupational therapists, Ms Aitken and Mr Siebel, found that the plaintiff’s duties as workshop supervisor exceeded his physical capacity.[39]However, despite the plaintiff’s reduced capacity, he continues to earn at his pre-injury rate in the defendant’s employ.  His current gross hourly pay rate is $37.633 per hour.  He has earned $22,808.11 nett in the current financial year until trial, or an average of $1,425.50 nett per week.  Perhaps the defendant is an understanding and sympathetic employer, or perhaps it is motivated by its vested interested in the proceeding by propping up the plaintiff’s earning capacity.  In the end, there is no need to rationalise the curious incongruity between the plaintiff’s current pay and his reduced capacity, because his current employment will cease in the near future.
  1. [55]
    For cogent reasons, the plaintiff intends to relocate to Western Australia to be with his aging and unwell mother. He has also been doing nightshift for nearly 4 years, which is wearing him down.[40]His proposed change will necessitate his resignation from his current employ and he will be forced in the open labour market and its attendant risks in Western Australia.
  1. [56]
    The plaintiff was remarkably optimistic, and I think overly so, about his future.[41]

“And the jobs you’re seeking, heavy rigid truck driving and forklift etcetera that I’ve noted, I take it you feel you’re capable of doing?---I’ve never - never had any  problem doing them up to today. 

Yeah.  Okay.  So, obviously, you expect that if you go back to Perth you’ll have to take a job that may be less - less well-paying than your current job?---That - that’s more than likely will happen.  Yes.

Yeah.  Until you can work yourself up the ladder again?---If - if that’s possible, yes.”

…

“Yeah.  But things like truck driving, forklift driving, things like that, you can manage okay?---There are some truck-driving jobs that are - are very easy, very easy jobs. 

And some - - -?---And then there are some that are very hard.  15 Sure?---I’d be - I’d be opting for the easy ones.

Yeah.  And some - it depends on the sort of job?---Yeah. 

Same with the forklift?---Yeah.  Same with a forklift.  Yeah.

Yeah?---Stores work, I’ve - I’ve got a cert III in - in stores.

Yeah?---It’s - I’ve done it.  It’s quite easy work.  It’s not rocket science and it - it’s a lot of work for stores.  There’s always work available.

Yeah.  Okay?---I’ve been constantly looking in that area.  I don’t think I’ll have a problem getting a job doing that again.”

  1. [57]
    In my view the plaintiff has an overly optimistic view of his future, without fully appreciating his future predicament with a reduced earning capacity, uncertainty of degeneration and surgical outcomes, and the risks of being exposed on the open labour market.[42]Having regard to the whole of the evidence, I find that the plaintiff is significantly limited in employment opportunities in the future. 
  1. [58]
    Any future employment will be commensurate with his residual earning capacity in his injured and degenerating state. He will also be limited due to his pre-existing state, including:
  1. His pacemaker, which precludes work as a boilermaker or in any employment involving welding; and
  1. His left knee and lower back, which will restrict him in heavy manual work.
  1. [59]
    The plaintiff has no trade qualifications, and despite being an obviously stoic and hard worker, he will experience difficulty competing with able-bodied applicants for better positions.[43]This is borne out having regard to his age and current symptomology,[44]which will worsen over time.[45]Dr Couzens opines that the plaintiff’s work capacity will deteriorate with the progressive deterioration in his arthritic condition over the next 5-8 years.  He will suffer further periods of disruption due to likely surgery, which will not result in any substantially new employment prospects.
  1. [60]
    In my view the plaintiff will be limited to more sedentary work and duties of forklift driving, truck driving, storeman or like roles. Even then he will be hindered by the left wrist impairment including continuing and aggravating of pain (subject to successful surgery); reduced capacity to lift and grip objects with his left hand, and reduced capacity to use vibrationary tools or equipment. In this regard, I preferred Ms Aitken’s occupational therapy evidence where it conflicted with Mr Siebel’s evidence.
  1. [61]
    The plaintiff’s also testified that he had “been looking on Seek regularly…extensively, for a long time”and was getting messages about potentially suitable jobs.[46]The Seek website also published the advertised hourly gross rates:
  1. (a)
    $22 to $25 per hour for a forklift driver,[47]which is $710 to $785 nett per week.
  1. (b)
    $22 to $24 per hour for a storeman,[48]which is $710 to $760 nett, per week.
  1. (c)
    $25 per hour for a truck driver, which is $785 nett per week.
  1. [62]
    Mr Siebel set out in table 2, paragraph1 5 of his report[49]a range of indicative gross and nett weekly incomes obtained from the outlook government website.  I glean from his evidence that:
  1. A storeman could expect to earn $740 nett for a 38 hr week;
  1. A forklift driver would earn $813 nett per for a 38 hr week.
  1. A truck driver working 46.3 hours per week would earn approximately $1,020 nett per week.[50]
  1. A delivery driver working 40.7 hours per could earn $815 nett per week.[51]
  1. [63]
    As to the other occupations mentioned in Table 2 of Mr Siebel’s report, I do not accept that the plaintiff has the capacity to work as a metal fabricator, crane operator or dogman. Apart from the need for training, his left wrist would severely compromise the requisite physical effort.[52]
  1. [64]
    Ms Aitken reported that a guide to potential earnings in lighter unskilled work roles might be in a range from $17.77 gross per hour as a carpark attendant/gate operator, to $18.95 per hour as a static security officer.[53]I find that approach too broad.
  1. [65]
    It seems to me that the plaintiff’s residual earning capacity would fall in the vicinity of $700.00 to $800.00 nett per week. I adopt the mean of $750.00 nett per week as his residual earning capacity. Therefore, I estimate the reduction in the plaintiff’s earning capacity as $595.00 nett per week being the difference between his residual earning capacity of $750.00 and his notional earning capacity of $1,345.00 nett per week.
  1. [66]
    The plaintiff is a stoic individual and it is likely that but for the injury to his left hand he would have worked to age 67. He has a potential future working life of approximately 17 years to age 67 and I will use the 5% multiplier 602.9.
  1. [67]
    The circumstances of this case does not enable me to precisely calculate future economic loss and I prefer a global award. There are many variables and imponderables arising out of the plaintiff’s symptoms, which are worsening over time, the progressive deterioration in his arthritic condition over the next 5-8 years, the medical evidence, surgical intervention, cessation of his current employment to move to Western Australia, risks of the labour market and his work capacity and his employability in limited vocations.
  1. [68]
    I will allow $250,000.00for future economic loss.  I rationalise this outcome by using $595.00 nett per week loss of earning capacity for 17 years to age 67 using the 5% multiplier of 602.9 to achieve $358,725.50 and then applying a discount of about 30% for contingencies. 
  1. [69]
    I also allow $27,500.00for future superannuation being 11% of $250,000.00.

Future Medical and Surgery

  1. [70]
    Dr Couzens opined that progressive deterioration of the plaintiff’s arthritic condition will require significant surgery along the lines of a fusion or similar within a period of approximately 5-8 years.[54]The cost of the surgery is in the vicinity of $15,000.00 to $20,000.00.[55]The plaintiff may need a wrist arthroscopy to investigate the pathology on the ulna side of the wrist in addition to the degenerative midcarpal problem,[56]estimated to cosy $6,500.00.[57]
  1. [71]
    In his report 4 March 2015 Dr Halliday concluded that “… it is unlikely that further treatment is going to significantly improve the problem.  I note that Dr Couzens…suggests wrist arthroscopy for diagnostic purposes and possible intervention beyond that. This would be a reasonable investigate procedure but it is unlikely that partial wrist fusion will improve his situation and it is likely to increase the impairment rating”[58]
  1. [72]
    The Plaintiff reluctantly accepted that if his left wrist pain continues to worsen then he will have surgery if advised by his treating doctors”, and he is “currently considering the four corner fusion of the left wrist which has been offered to him by Dr McKewin”.[59]
  1. [73]
    I will allow $23,248.00for future surgical and medical expenses, calculated as follows:
  1. $12,748.00 for future fusion or similar surgery, being the middle of the estimated range of $17,500.00 deferred 6.5 years, by using the deferral factor 0.7285; and
  1. $3,250.00 for a diagnostic arthroscopy, being the sum of $6,500.00 discounted 50% for all contingencies and deferment; and
  1. The parties have agreed to all other future expenses in the sum of $7,250.00.

Other heads of damage

  1. [74]
    The parties are in substantial agreement on the other heads of damage or the mechanism for their calculation.
  1. [75]
    The parties are agreed that the average figure for net average weekly earnings as at the date of injury was $1,336.37. The plaintiff lost work for a total of 5.84 weeks in the following periods:
  1. (a)
    1.42 weeks from 29 October 2012 to 7 November 2012 is $1,909.10; and
  1. (b)
    4.42 weeks from 20 September 2013 to 21 October 2013 is $5,908.08.
  1. [76]
    Therefore, the parties have agreed that the plaintiff has sustained a loss of income of $7,804.40. His loss of superannuation at the agreed rate 9% is $703.55.
  1. [77]
    The plaintiff received $6,168.00 in WorkCover payments nett of taxation. Accordingly he is entitled to interest of agreed at $88.20 being 1.7% x $1,636.40 ($7,804.40 nett loss less $6,168.00 nett WorkCover benefits) for a period from the date of the injury to date.
  1. [78]
    The hospital, medical and rehabilitation expenses paid by WorkCover in the sum of $19,804.38 are admitted, as are the medical expenses paid by Medicare in the sum of $675.20. The plaintiff has incurred $240.00 by way of medication and expenses apart from Mobic.[60](His past expenses excluding Mobic at $20,719.58).  He has incurred approximately 12 scripts of Mobic at $16 per script being $192.00, part of which is attributable to his left wrist.  Making some allowance for contribution to Mobic, past expenses are calculated in the sum of $20,800.00.
  1. [79]
    The plaintiff’s Fox v Woodcomponent is agreed at $1,844.00 in accordance with the WorkCover Payment History.[61]

Summary

  1. [80]
    In summary my assessment of the plaintiff’s damages is as follows:

General damages

$14,000.00

Past economic loss

$7,817.18

Interest

$88.20

Past superannuation

$703.55

Future economic loss

$250,000.00

Future superannuation

$27,500.00

Past expenses

$20,800.00

Future expenses

$23,248.00

Fox v Wood component

$1,844.00

Subtotal

$346,000.93

Less refund to WorkCover[62]

  • - $27,817.08

Total

$318,183.85

Conclusion

  1. [81]
    For these, reasons, I give judgment to the plaintiff against the defendant in the amount of $318,183.85.
  1. [82]
    Unless either party applies for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Footnotes

[1] Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.

[2]  Cf. State Of Queensland v Kelly [2015] 1 Qd R 577 at [33]–[34], [57] – considering the analogous s 13 of the Civil Liability Act 2003.

[3]  Cf. Osbourne v Downer EDI Mining Pty Ltd [2010] QSC 470 at [74].

[4]  Exhibit 38 - Report of Mr Chau, pp 3 - 7

[5]  Transcript 1-5 & 1-41

[6]  Transcript 1-41

[7]  Transcript 1-39/40-44.

[8]  Exhibit 39

[9]  Transcript 1-44

[10]  Transcript 1-77/45

[11]  Exhibit 38 - Report of Mr Chau, p.15

[12]  Transcript 1-77/45

[13]  Exhibit 38 - Figure 28 of Mr Chau’s report, p24

[14]  Transcript 1-77

[15] Workers Compensation and Rehabilitation Act 2003 ss 306 to 306P.

[16]  Paragraph 29 - Quantum Statement (Exhibit 1).  Plaintiff’s evidence at T1-48, L40 to T1-50, L13.

[17]   Transcript 1-55/37 to T1-56/6.

[18]  Exhibit 11.

[19]  Exhibit 12 - Report Dr Coll dated 29 October 2012

[20]  Exhibit 12 - Report Dr Coll dated 29 October 2012

[21]  Reports of Dr McKewin 23 and 27 August 2013.   (Exhibits 14 and 15)

[22]  Exhibit 16 - Operation record 20 September 2013

[23]  Exhibit 17 – Report of Dr McKewin dated 23 October 2013

[24]  Exhibit 2 - Cairns Base Hospital records at pp.7-13 and 214-215 (hospital record numbering).

[25]  Exhibit 19 - Dr Couzens report dated 21 May 2014, Conclusion 2 on p.6.

[26]  Exhibit 19 - Page 6 of Dr Couzens’ report

[27]  Exhibit 20 - Para 3, memo of 9 October 2015

[28]  Exhibit 20 – Para 5, memo of 9 October 2015

[29]  Exhibit 24 – Report Dr Halliday dated 4 March 2015

[30]  Exhibit 24  - Report Dr Halliday dated 4 March 2015- p.6 second paragraph

[31]  Exhibit 24  - Report Dr Halliday dated 4 March 2015 - p.3 second para

[32]  Exhibit 24 - Document 20 of schedule attached to Dr Halliday’s report

[33]  Exhibit 1- Quantum Statement - Para 69

[34]  Exhibit 20 - Memo of 9 October 2015

[35]  Exhibit 24  - Report Dr Halliday dated 4 March 2015 - Conclusions 4 and 5 on p.7

[36]  Section 9 of schedule 8, Regulations

[37]  Regulation, Schedule 12, Table 3 – For an injury sustained from 1 July 2012 to 30 June 2013 (dates inclusive).

[38]  Exhibit 27A.

[39]  Exhibit 21 - Aitken report, para 6.3.5 and Exhibit 25 Siebel report, para 37.

[40]  Transcript 1-72/32-38 and T1-72/45 to T1-73/2, and paragraph 96 of Quantum Statement – Exhibit 1

[41]  Transcript 1-88/4 – 1-89/30

[42]  Contrast the circumstances in Koven v Hail Creek Coal Pty Ltd [2011] QSC 051, and see McMeeken J at [34]

[43]  Evidence Mr Siebel at T2-45/22 to T2-46/42.

[44]  Refer inter alia Plaintiff’s evidence at T1-53/24 to T1-55/36. 

[45]  Transcript 1-55/37 to T1-56/6

[46]  Transcript 1-72/40-44.

[47]  Transcript 1-73/34.

[48]  Transcript 1-73/39.

[49]  Exhibit 25.

[50]  Transcript 2-58/13-18.

[51]  Transcript 2-55/30-36.

[52]  Transcript 2-58/36 to T2-59/27.

[53]  Exhibit 21 - Report Aitkin - para 6.4.2

[54]  Exhibit 20 - Para 4 of Couzens memo.

[55]  Exhibit 20 – Para 8 of Couzens memo,

[56]  Exhibit 20 - para 5 of Couzens memo, and T2-24, L4-19.

[57]  Exhibit 19 - Para 5 of Couzens report

[58]  Exhibit 24  - Report Dr Halliday dated 4 March 2015, p.6

[59]  Exhibit 1 - Para 93

[60]  Exhibit 1 - paras 89-92. 

[61]  Exhibit 1 - Attachment D to the Quantum Statement.

[62] Workers Compensation and Rehabilitation Act 2003 (Current) s 271(1); Exhibit 1 - Attachment D to the Quantum Statement.

Close

Editorial Notes

  • Published Case Name:

    Richard Garth v BSE Cairns Slipways Pty Ltd

  • Shortened Case Name:

    Richard Garth v BSE Cairns Slipways Pty Ltd

  • MNC:

    [2015] QDC 343

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    27 Nov 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
3 citations
Jump To
Cite 1 - (1986) 160 CLR 301
Cite 2 - (1986) 160 CLR 301
Cite 3 - (1986) 160 CLR 301
Koven v Hail Creek Coal Pty Ltd [2011] QSC 51
2 citations
Jump To
Cite 1 - [2011] QSC 51
Cite 2 - [2011] QSC 51
McLean v Tedman (1984) 155 CLR 306
2 citations
Jump To
Cite 1 - (1984) 155 CLR 306
Cite 2 - (1984) 155 CLR 306
Osborne v Downer EDI Mining Pty Ltd [2010] QSC 470
2 citations
Jump To
Cite 1 - [2010] QSC 470
Cite 2 - [2010] QSC 470
State of Queensland v Kelly[2015] 1 Qd R 577; [2014] QCA 27
2 citations
Jump To
Cite 1 - [2015] 1 Qd R 577
Cite 2 - [2015] 1 Qd R 577

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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