Winter v Bourboulas[2005] QSC 164

SUPREME COURT OF QUEENSLAND

[1] Douglas J:  The plaintiff, Mr Anthony Winter, was seriously injured in an accident on 15 October 2001 while driving his car to work.  The driver of another car on the opposite side of the road lost control of that vehicle, which crossed the median strip and collided head-on with Mr Winter’s vehicle.  His injuries consisted of a fractured right first rib, a fractured L1 vertebra, a fractured left tibia, a fractured left fibula, a fractured right patella, a fractured left radius, a fractured ulna and some psychological consequences described by Dr Mulholand as “chronic low-grade anxiety-depression” not at a severe enough level to be regarded as a formal psychiatric disorder and, by Dr Alcorn, as a limited adjustment disorder with anxious mood. 

[2] Liability for the damages claimed by the plaintiff is not contested by the defendants. 

The plaintiff’s background

[3] Mr Winter was born on 29 May 1972.  He was 29 at the date of the accident and is now 33.  He was educated to grade 12 and left school at the age of 18, commencing an apprenticeship as a printer immediately, which he completed about three and a half years later.  Apart from a nine month working holiday overseas he continued to work as a flexographic printer until the accident.  He had an excellent work record and was a valued employee.  He enjoyed his work and intended to continue in his occupation until he retired at the age of 65.  At the time of the accident he was doing a night shift between 10.00pm and 6.00am and was also able to work a significant number of hours as overtime, with the consequence that he was well paid. 

[4] Mr Winter is married.  His wife has a child by a former marriage.  She had been an assistant in nursing and assisted her husband greatly after his accident by helping to care for him.

The operations and their aftermath

[5] Mr Winter had several emergency operations on the day after his accident.  His left forearm fractures were fixed with plates.  His tibial fracture was washed, cleaned, fixed and the wound left open to be closed later.  His right patella was excised.  His left knee laceration was washed out and closed over a drain.  His wounds were debrided several times and closed later.  He was also referred to physiotherapy.  He spent three weeks in the orthopaedic ward of the Princess Alexandra Hospital for rehabilitation and remained in that hospital for a total of  four weeks after the accident. 

[6] He was subsequently re-admitted with an infection in the left tibial fracture, which required the replacement of rods and pins in his leg in February 2002.  He also underwent further operations in May and October 2002 and re-fractured his forearm on 13 December 2002 in the course of rehabilitation therapy, requiring further treatment.  By 23 June 2003 Dr Pentis was of the view that he had recovered probably as best as he would in relation to his lumbar fracture, the fractures of his tibia and fibula and the removal of his right patella. 

[7] Dr Pentis’s opinion of the residual problems that Mr Winter suffered was that he had a 15% loss of the efficient function of the right leg and a 12.5% loss of the efficient function of the left leg.  Those injuries, in Dr Pentis’ view, affected Mr Winter’s ability to bend, squat and carry heavy weights when associated with squatting.  He thought it best that Mr Winter stay away from jobs that required such movements.  He said that the fracture to his vertebra had recovered to a reasonable degree and was not causing major problems but would leave him with a weakness in the spine affecting lifting, bending and twisting activities.  He estimated that he had suffered a 15% loss of the efficient function of his spine as a whole in the long term.  The left wrist fracture caused Dr Pentis to estimate the incapacity there as in the vicinity of a 15% loss of the efficient function of that arm.  Mr Winter is right handed. 

[8] Dr Nave’s assessment of his residual orthopaedic injuries reflects a similarly serious view of his incapacities with variations in respect of the precise percentages of disability.  His view was that the loss of a patella was equivalent to a 22% loss of efficient use of the right leg.  He thought that Mr Winter had suffered an impairment that would not exceed a figure of about 5% loss of efficient use of the left leg, that his loss of use of the left arm was in the region of 5% to 7% and estimated the impairment of Mr Winter’s back, after he had seen some x-rays, at 10%.

[9] The second defendant accepted the conclusion that the plaintiff had suffered a combination of serious, painful and disabling injuries. 

[10] Mr Winter was also left with residual scarring to his face, left forearm, left hip, left knee, left leg and right knee.  The facial scarring was not very obvious.  It consisted of a vertical scar at the medial end of the right eyebrow about 2.5cm in length which was quite fine.  There was also a fine scar around the left orbit which was semi‑circular and again about 2.5cm in length.  There was also a small depressed scar near the left eyebrow of no great significance.  There were other scars to his limbs and body.  Dr Harris estimated his permanent impairment arising from these disfigurements at 10%.  He says that it may require further treatment for the scar overlying the left tibia at a possible cost of up to $9,200.00. 

[11] He was an invalid for a period of about six months after he left hospital, undertaking extensive physiotherapy, hydrotherapy and other treatment.  He lacks endurance in using his left arm and suffers pain and instability in his right leg, particularly when he is walking downhill or downstairs.  Walking for about an hour also causes significant pain in his left leg.  He has also lost strength in his right leg and notices that his muscles there are wasted.  Mr Winter also feels pain in the back when bending down.  These disabilities have made it impossible for him to return to his former work, which was accepted by the defendants. 

Rehabilitation and work trials

[12] Mr Winter has been treated and assessed by a number of rehabilitation services, including the Commonwealth Rehabilitation Service (“CRS”) and Ekco Occupational Services Pty Ltd (“Ekco”), the latter on a referral from WorkCover Queensland.  He has also been assessed by Brisbane Occupational Therapy Services through a Mr Morgan who was engaged by the second defendant insurer, Allianz Australia Insurance Limited.  He also undertook private rehabilitation with a physiotherapist.  There seems no doubt that he was keen to get back to work.  Unfortunately he has had great difficulty in trying to achieve that aim. 

[13] He undertook a “work hardening programme” under the supervision of Ekco that lasted six months.  A work trial with his former employer, Amcor Ltd, was arranged but the attempts to perform his former duties caused pain that was too great. 

[14] Amcor is a packaging company.  Mr Winter worked for them by running large printing machines used to print plastics for their packaging activities.  When he first took part in this work trial he lasted about an hour before the decision was made, with the occupational therapist attending him, that he was not then ready to go back to work.  He later tried to work with Amcor again after plates were removed from his arm.  Again that work trial lasted about an hour and was unsuccessful. 

[15] His employment with Amcor was terminated but he underwent further rehabilitation with the CRS who arranged a work trial for him at a supermarket, stacking groceries on shelves.  The lifting, bending, kneeling and carrying involved in that work for part of a working day over a period of about nine weeks, starting off with three hours per day and ending up with about seven hours per day, was very difficult for him.  He says that he was in constant pain doing it.  It was not successful. 

[16] Mr Winter also had a work trial with Kings Car Parking arranged by the CRS.  He worked there for four days for five hours a day.  Part of the work involved moving large bins and emptying them.  He was not able to do that.  The main task he was required to do was to work in a booth taking money from people who had parked in the car park.  He had problems with pain in his left arm from the operations involved in the work and also had problems from pain in his legs caused by his sitting on a stool where he could not reach the ground.  To try to cope with the pain he had to get out of the booth constantly to walk around and found the work quite difficult.  He also had trouble dealing with customers who needed change in the booth, getting tickets, typing in numbers and calculating the amount of change to which the customers were entitled.  He has difficulty with mental arithmetic and it is significant that his school results suggest that he was not particularly talented academically.

[17] He was not offered employment arising out of that work trial and CRS have not arranged any further trials for him.  He now receives unemployment benefits and is in the course of applying for a disability pension.  The conclusion one should draw from this evidence is, in my view, that Mr Winter’s loss of earning capacity is very significant.  Mr Williams QC for the plaintiff conceded that it is possible that at some time in the future or from time to time in the future Mr Winter may obtain some part-time employment of a sedentary or a semi-sedentary nature such as work as a ticket collector or a booth operator for short periods.  It is difficult to imagine him doing more taxing work than that and difficult to see him doing it for the hours involved in a normal working week. 

[18] There was some examination of the possibility of him working, for example, as a TAFE teacher of printing.  He would need a further certificate or qualification to qualify for such a role, which he would probably be able to obtain.  The evidence was, however, that there is only one TAFE college in Queensland that conducts a printing course, that its numbers of employees have reduced from twelve to eight in recent years and that the only position for which Mr Winter might be suited was held by a 47 year old who is better qualified than Mr Winter for the position even if he obtained the certificate to which I have referred.  The probabilities of his obtaining such a position must, therefore, be very low even if he were able to work consistently and stay on his feet for the hours needed as a teacher of the trade.  Mr Grant-Taylor SC for the second defendant submitted that he had suffered a loss of approximately 50% of his earning capacity into the future but, in my view, the loss is much higher than that.  I shall deal with that issue further later in these reasons.

General damages for pain, suffering and loss of amenities of life

[19] Apart from the severe pain Mr Winter has suffered, the effect of his injuries on his social and family life has been significant.  He used to play cricket, football and go bike riding with his wife’s son.  He cannot now do that.  Nor can he play golf.  His social life, which used to consist of going out with friends, playing golf and going to the cinema, has been curtailed.  His injuries are significant individually and in combination in affecting his ability to enjoy life.  It is significant that he is still a relatively young man. 

[20] In Weightman v Noosa Shire Council & Ors [2001] QSC 300, decided by Philippides J on 17 August 2001, her Honour assessed general damages for pain, suffering and loss of amenities of life in respect of a 55 year old plaintiff with a combination of injuries leaving him with a 35% loss of efficient function of the left leg and a 5% loss in respect of the lumbar spine with associated problems caused by a hernia and post traumatic stress disorder at $75,000.00.  There are no other recent comparable decisions to which I was referred by the parties. 

[21] Mr Winter’s significant injuries to both legs, his arm and his back as well as his relative youth lead me to conclude that his damages should be rather higher, also taking into account the passage of time since her Honour’s decision.  In my view an appropriate award under this head of damages would be $90,000.00.

Interest on past component of general damages

[22] It seems appropriate to me to assess the past component of general damages at $30,000.00.  Interest at 2% on that figure for 3.68 years is $2,208. 

Past economic loss

[23] The main difference between the parties in respect of this issue was whether I should proceed on the basis that the plaintiff’s loss was most accurately measured by the income earned by two comparable employees, a Mr Hart and a Mr Menzler, or by extrapolation from the income he was paid by Amcor until the end of June 2002.  Mr Menzler was more strictly comparable than Mr Hart as an employee in the sense that he worked on the same night shift as Mr Winter and also worked overtime.  Mr Hart worked on a different shift but it was conceded by Mr Williams for Mr Winter that it would not necessarily have been the case that Mr Winter would have continued to work during the night shift or to have done so much overtime, depending on his wishes in respect of his family. 

[24] Mr Grant-Taylor submitted that a more reliable base to work from was the amount that was paid to Mr Winter by his employer including what was paid during the period after the accident until June 2002.  During the financial year ending 30 June 2002 Mr Winter was paid gross wages of $50,405.00, which Mr Grant-Taylor extrapolated to the present and from that estimated that his net notional income against his actual income from personal exertion was $126,189, which he discounted in a very minor way to $125,000.00, recognising Mr Winter’s reliable record as an employee.  From that he further deducted travel costs incurred by Mr Winter to and from his place of work at 50 cents per kilometre and $75.00 per week to arrive at a compensable loss of $111,940.00.

[25] The assumption on which that calculation was based was that he would have earned, in effect, what Amcor paid him during the financial year ended 30 June 2002.  The rationale for deducting travelling expenses was accepted by the Court of Appeal in Delaney v Shepherd [2000] QCA 107 at [5]. 

[26] Mr Williams, however, relied upon the earnings of Mr Menzler in particular to submit that the allowance for past economic loss should be rather more.  Mr Menzler’s pre-accident wages were very closely comparable to those of Mr Winter.  His post-accident wages can be calculated to show a higher average income than that notionally assessed by Mr Grant-Taylor in reliance upon what Amcor paid Mr Winter from the accident until 30 June 2002.  There is little evidence to justify me in concluding that what was paid by Amcor during that period is properly comparable to what Mr Winter may have earned.  What evidence there is is more at the level of inference from what was paid as shown on the documents than anything that made it clear that it was Amcor’s practice to compensate injured workers fully for all their likely loss. 

[27] I am more comfortable with the view that Mr Menzler’s earnings provide a better comparison.  Based on those earnings Mr Williams submitted to me that an average lost earning capacity between the accident and now was $750.00 per week, a figure he arrived at that was less than the amounts earned by Mr Menzler to take into account the contingencies that Mr Winter may not have earned at Mr Menzler’s rate for the whole of that period.  On that basis, for the approximate 192 weeks since the accident his net economic loss would have been $144,000.00.  Deducting an appropriate amount for the plaintiff’s expenses of travelling to work, in the region of $13,248.00, and reducing the calculation slightly to allow for contingencies other than those already included in the figure of $750.00 adopted by Mr Williams in his submissions it seems to me that a fair award for the plaintiff’s past economic loss is $130,000.00. 

Interest on past economic loss

[28] The parties agreed that the rate of interest should be 2.805%, derived from s 55E(2) of the Motor Accident Insurance Act 1994, being the appropriate rate under that Act defined as the “rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘interest rates and yields–capital market’ as at the beginning of the quarter in which the award of interest is made.”  The amount on which interest should be calculated, after the deduction of $47,873.58 attributable to reimbursements by WorkCover to Amcor and directly to the plaintiff, and the further deduction of $12,000.00 as agreed Centrelink benefits, is $70,126.42.  The period of the calculation of interest extends over 1184 days between 12 July 2002 and 17 June 2005.  On my calculations the interest component is $6,373.23.

Past loss of employer’s contributions to superannuation

[29] The defendant submitted that the appropriate figure to adopt here was 9% of the award for past economic loss which, on my calculation, is $11,700.00. 

Impairment of future earning capacity

[30] It seems unrealistic to me to assess Mr Winter’s loss of future earning capacity at one half of what he would have been capable of earning apart from the accident.  His history of attempts to go back to work and their failure and the difficulty experienced by those who have assessed and treated him in establishing what he could do now makes me conclude that the submission that his residual earning capacity is very limited is correct.  Mr Williams submitted that I should take into account the current earnings of Mr Menzler and Mr Hart at $871.31 net per week in Mr Menzler’s case and $731.74 net per week in Mr Hart’s case as a starting point and also assume, conservatively, that Mr Winter would have earned less than Mr Menzler in spite of their comparable earnings before the accident.  On that basis, assuming that Mr Winter had a net residual earning capacity of $150.00 per week, Mr Williams submitted that his net weekly loss was in the region of $650.00 per week.  Allowing that figure for 32 years until Mr Winter would notionally have retired at the age of 65 and deducting 15% for contingencies leaves one with a figure of $466,862.50 which, he submitted, should be further reduced to the claim pleaded in the statement of claim of $450,000.00. 

[31] That calculation does not take into account any amount for travelling expenses referred to earlier.  It does discount, however, Mr Winter’s likely earnings compared to Mr Menzler as well as making the conventional discount of 15% for contingencies and the amount of $16,862.50 needed to further reduce the claim to that in the statement of claim. 

[32] It is not clear to me that Mr Winter will, in fact, be able to earn income regularly at the rate of approximately $150.00 to $200.00 per week on which Mr Williams based his calculations.  I suspect that his average future earning capacity will be less than that, more so if one takes into account expenses, such as travelling expenses, that he would incur even to earn that income.  Nor would it be right to assess the travelling expenses Mr Winter might have incurred to earn the income he would have received from Amcor necessarily at the same level of $75.00 per week for his whole working life.  One can only speculate as to what it may have continued to cost him to travel to his workplace.  Even taking his likely travelling expenses into account then it seems to me that the plaintiff has established a likely future economic loss of $650.00 per week.  In my view the claimed amount for impairment of his future earning capacity of $450,000.00 is a proper measure of that component of his damages. 

Future loss of employer superannuation contributions

[33] Again this is assessed at 9% of the figure for impairment of future earning capacity, namely $40,500.00. 

Special damages including those paid by WorkCover

[34] The special damages are agreed at $38.805.96.

Interests on actual paid special damages

[35] Interest should be allowed at 2.805% on $2,216.40 over approximately 3.68 years which yields $228.79.

Future medical, surgical, therapy and other expenses

[36] Dr Harris’ assessment of the likely expense of future plastic surgery was that it could amount to $9,200.00 but there remains some doubt as to when and if Mr Winter will undergo any such treatment.  Dr Alcorn also proposed four series of treatments at $180.00 each.  Taking into account the uncertainties attending when and if this treatment will take place my assessment of this head of damages is $5,000.00.

Past care and assistance

[37] The only real disagreement between the parties’ submissions on this issue was as to the hourly rate to be applied.  Mr Grant-Taylor relied upon the rate of $15.00 per hour found to be appropriate in McChesney v Singh [2002] QSC 311 at [54].  There was evidence here to support commercial rates higher than that and the evidence in that case related to a significantly earlier period.  It was also significant that Mrs Winter was unable to work because of the care she gave her husband, which included dressing an infected wound several times per day, bathing and dressing the plaintiff and attending to his other needs including transportation.  In the circumstances the rate of $20.00 per hour seems to me to be appropriate.  For the past the amount of care is estimated at 13 weeks at six hours a day or $10,920.00 to which should be added 173 weeks at an average of three hours per week at $20.00 per hour or $10,380.00 making a total of $21,300.00.

Interest on past care

[38] The issue here is what rate of interest should be applied.  The possibilities are to use the rate of 2.805% referred to earlier or to use what was described as a “common law” rate of 5%.  The statutory rate of 2.805% under s 55E of the Motor Accident Insurance Act applies to “damages compensating past monetary loss”.  In Gitsham v Suncorp Metway Insurance Limited [2003] 2 Qd R 251, 266-268 at [70]-[74], White J, delivering the judgment of the Court of Appeal, when construing the similar phrase “financial loss”, held that it extended to damages allowed for past gratuitous care because it was a pecuniary loss assessed by the Court seeking to estimate a financial compensation for a financial loss.  The same approach should dictate the conclusion here that a claim for interest on past care is a claim for damages compensating past monetary loss.  Accordingly the interest on the past care of $21,300.00 for 3.68 years at 2.805% amounts to $2,198.67. 

Future care and assistance

[39] The claim by the plaintiff was that there was a need for three hours per week of care at $24.00 per hour for 48 years amounting to $96,343.20 discounted to $80,000.00.  It seems to me, however, that the demonstrated need for care is no longer that number of hours per week.  Mr Grant-Taylor’s submission was that an appropriate figure was more like one hour to one and a half hours per week and that seems to me to be correct.  Mr and Mrs Winter, before the accident. shared household duties roughly equally.  He still mows the lawn, with difficulty.  He does the light part of the washing up where Mrs Winter does the heavy part of it.  They shop together but she does the heavy lifting and he helps her with the washing by handing her the pegs and clothes as she hangs them up.  He cannot assist in making the bed and their son cleans the bathroom.  To my mind that suggests that there is a need for care in that more limited range of time submitted by Mr Grant-Taylor.

[40] Mr Williams submitted that an appropriate rate for future care and assistance was $24.00 per hour, based on the commercial rates, for 48 years.  Taking into account the range of possible commercial charges, the lack of evidence of the amount of agency fees and similar overheads in respect of the commercial rates proved in the evidence and Mr Winter’s ability to organise his need for care himself, without incurring an agency fee at this stage and for the foreseeable future, it seems to me that it is appropriate to continue to assess the hourly rate at approximately $20.00 instead; cf Goode v Thompson [2002] QCA 138 at [24]-[27].  Allowing approximately one to one and a half hours of future care, I assess the damages in respect of this component at $30,000.00. 

Conclusion

[41] In summary, therefore, my assessment of the plaintiff’s damages is as follows:

Pain and suffering and loss of amenities of life $90,000.00

Interest on past component$2,208.00

Past economic loss$130,000.00

Interest on past economic loss$6,373.23

Past loss of superannuation contributions by employer$11,700.00

Impairment of earning capacity$450,000.00

Future loss of employer superannuation contributions$40,500.00

Special damages$38,805.96

Interest on actual paid specials ($2,216.40)$228.79

Future medical, surgical therapy and other expenses$5,000.00

Past care and assistance$21,300.00

Interest on past care$2,198.67

Future care and assistance$30,000.00

Total$828,314.65

[42] I give judgment for the plaintiff against the second defendant for $828,314.65.  I shall hear further submissions as to costs.